Will a new Supreme Court Justice be appointed before 20 January 2017? (update)

The Democratic leadership in the Senate is talking tough: “’Republicans are backing down so quickly that they’re already bargaining about what month they will fully cave and confirm Judge Garland,’ Senate Democratic leader Harry Reid says in statement”[a]. But he would say that, wouldn’t he?  Reid is probably best understood as trying to influence the outcome of events rather than reporting (with much reliability) on actual Republican machinations.

But there is an interesting idea here, mentioned by @wrichars, @bongani, @Flieger19, @Jean-Pierre and others, that the Senate Republicans will stall the nomination until the election and then rush Garland through at the last second when a Democrat (0.97 probability = HRC) wins. That’s a certainly a possibility. Let’s give it some thought.

Whether the Republicans have the motivation to rush Garland through at the buzzer depends on the palpable fact that they might do even worse than Garland under HRC[b]. But this scenario is no more likely than that of a Democratic presidential victory, something that I currently think has little more than a 0.50 probability (but that’s another story). Importantly, even a Democratic presidential victory doesn’t mean that the Senate must confirm whomever the newly minted commander-in-chief nominates. Scenario #1: The Senate remains in Republican hands (current probability = ca. 0.75). Republican leadership then decides that they would prefer to take their chances blocking any candidate for the SCOTUS to the left of Garland (probability = ca. 0.30). Why? Republicans might claim that the new president lacked a mandate because of her small margin of victory or because of what they might see as historic anomalies in the race (hint: something that rhymes with “grump”). Or whatever. I’m certainly not saying this makes sense from the point of view of good governance; I don’t think it does. But refusing to hold hearings on the Garland nomination doesn’t seem to me to do so either, so there you go. Scenario #2: Republicans lose the Senate (probability = ca. 0.25), but they still use filibuster shenanigans to keep the nomination from coming to a vote until they get someone to the right of Garland (probability = 0.10). Sure, a Democratically controlled Senate could change the filibuster rules, but at a cost[c], a cost Democrats might not want to pay. At the moment that looks to me like 0.50 x ([0.75 x 0.30] + [0.25 x 0.10]), which we could round up to 13%. Since I also believe that there’s a roughly similar calculation that Republican Senators are likely to make between now and the election (discussed elsewhere), I’ll double my estimation of the likelihood that Garland will be approved before President Obama leaves office. 26% is still rather unlikely, but it’s not as low as one might think if one only listened to Republican Senators or as high as one might believe if one only listens to Harry Reid.

[a] http://www.bloomberg.com/politics/trackers/2016-03-16/-no-question-mcconnell-will-cave-on-garland-nomination-reid (h/t @austerity)

[b] http://fivethirtyeight.com/features/republicans-could-do-a-lot-worse-than-merrick-garland-under-president-clinton-or-president-trump/

[c] http://www.npr.org/sections/itsallpolitics/2013/12/13/250805071/cost-of-battling-filibuster-rules-no-sleep-or-fund-raising

[d] http://www.nytimes.com/2016/02/25/opinion/the-party-of-no-way.html


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