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

Haven’t thought much about this lately, so it looks like it’s time for an update.

Politico tells us that “Democrats are getting badly outspent by their conservative rivals in the war over Merrick Garland’s confirmation, suggesting that President Barack Obama’s closest allies in the Supreme Court battle have more bark than bite…The muscular spending from GOP-backed groups shows how dug-in conservatives are over their Garland blockade, and has helped keep almost all Senate Republicans moving in lockstep”[1]. Sounds bad for the Ds. But does money matter here? I can’t quite see how the mechanism is supposed to work (or, more exactly, work well).

More important, I think is the near inevitability of Mr. Drumpf’s nomination[2] and his less than stelar chances in the general election[3]. These facts might throw a spanner into the works. R Senators could be willing to make their peace with the Garland nomination in order to avoid getting a nominee to his left after HRC enters office. Yet the Senators probably needn’t be in a rush. If HRC wins, they could approve Mr. Garland after the election[4][5].

Now here’s an interesting wrinkle: Some folks on the right even fear what will happen if Mr. Drumpf is elected: “If Drumpf has a choice between an originalist conservative with sterling credentials who would often block Drumpf, and buddy of his who hasn’t read the Constitution but would let Drumpf do what he wants, who do you think Drumpf would pick?”[6]. Mr Drumpf has repeatedly promised to provide a list of possible nominees, but he hasn’t delivered yet[7]. Maybe it’s just as well; his mercurial nature would render such a list out-of-date before we ever saw it.

So if HRC wins, then approve Mr. Garland after the election, and if Mr. Drumpf wins, then approve Mr. Garland after the election. Therefore, approve Mr. Garland after the election? Well, maybe. Here are some things that might, just might, stand in the way:

  • (a) HRC wins, but President Obama withdraws Mr. Garland’s name in deference to the incoming president.
  • (b) HRC wins, but Senate Rs can’t get their act together to approve Mr. Garland during the lame duck session.
  • (c) HRC wins, and Senate Ds think they can do better than Mr. Garland.
  • (d) Mr. Drumpf wins, and Senate Rs think they can do better than Mr. Garland.
  • (e) That thing I said before about another Supreme Court Justice dying might happen
  • (f) Something I haven’t thought of yet.

While (a) could happen[8], I don’t know of any evidence that President Obama is actually considering this possibility. HRC has said, if she wins the election, she won’t ask Mr. Obama do withdraw Mr. Garland’s nomination[9]. While she could easily reverse course on this point, I’m not sure she’d have that much to gain by doing so. On the contrary, if the Senate confirms Mr. Garland after the presidential election, she’ll have one less fight with the Senate on her hands. Low probability – call it 10%.

I think (b) is more likely[10]. In order for the Senate to confirm Mr. Garland, Sen. Grassley would have to relent and somehow find a way to save face after repeatedly saying “No way, Jose”[11]. But Sen. Cruz’s remarkably fast climbdown from “We’re in it to win it” to “Sayonara, suckers” is a reminder that a post-haste volte-face that seemed unlikely can happen when conditions change. In addition to Sen. Grassley’s embrace of pretzel logic, there would have to be enough Sen. Rs and Ds who are in the mood to give the Garland nomination priority. That’s not a given. Surely, some departing R senators will have some last minute business to attend to, and that might soak up whatever time is available to deal with Mr. Garland’s nomination. And voters are less interested in this sort of thing than I used to think[12]. From a distance Senate Rs might look like a unified bunch, but they have some sharply divergent interests, and that might keep them from doing what might be in all of their interests. Fairly probable – call it 30%.

I love (c), but I think it’s pretty damn unlikely. Strictly speaking, the Rs would need only 6 Ds in order to confirm Mr. Garland. Even if they had a lot of R defections, I feel pretty confident that they could scrounge up 15-20 Ds. Only a D filibuster could stop the process, and that’s the last card that Ds would want to play in these circumstances (assuming that an HRC victory brings with it control of the Senate). Very low probability – call it 1%.

As for (d), I’ve already mentioned grumblings among the Rs that Mr. Drumpf would unlikely to provide a candidate who is, all things considered, superior to Mr. Garland. Thing is, those grumblings aren’t, to the best of my knowledge, coming from Senate Rs. On the contrary, Sen. Chuck Grassley has said that “there’s no problem with” Mr. Drumpf “appointing people to the Supreme Court”[13]. Low probability – call it 5%.

I’d say (e) is still pretty damn unlikely but interesting nonetheless[14]. Very low probability – call it 1%.

And (f)? Well, I could use some help, and I’ll reevaluate as soon as I get some.

Since I currently think HRC is a 71/29 favorite over Mr. Drumpf[15], I must think that the odds that Mr. Garland will be appointed are something like this: (0.71*.59) + (0.29*0.06) = 0.43. That’s certainly a higher probability than I had earlier thought, largely because of the Ds increased probability of taking the White House.

[1] http://www.politico.com/story/2016/05/gop-supreme-court-merrick-garland-222898#ixzz48MMHag1k

[2] https://www.gjopen.com/comments/comments/228739

[3] https://www.gjopen.com/comments/comments/230497

[4] http://www.reuters.com/article/us-usa-court-garland-idUSKCN0WJ251

[5] http://www.wsj.com/articles/gop-plots-its-path-on-merrick-garland-supreme-court-nomination-1458169679

[6] Quoted at http://mediamatters.org/research/2016/05/10/conservative-lawyers-warn-against-allowing-trump-pick-supreme-court-justices/210331

[7] http://nymag.com/daily/intelligencer/2016/05/trumps-possible-scotus-radicalism.html?utm_source=Sailthru&utm_medium=email&utm_campaign=Daily%20Intelligencer%20-%20May%209%2C%202016&utm_term=Subscription%20List%20-%20Daily%20Intelligencer%20%281%20Year%29

[8] https://www.washingtonpost.com/blogs/plum-line/wp/2016/03/17/how-obama-could-get-last-laugh-in-supreme-court-fight/

[9] http://www.latimes.com/politics/la-na-live-updates-democr-sanders-if-elected-id-ask-obama-to-withdraw-gar-1460689474-htmlstory.html

[10] http://www.businessinsider.com/r-key-republicans-open-to-handling-garland-nomination-after-us-election-2016-3

[11] http://www.politico.com/story/2016/03/chuck-grassley-defends-supreme-court-block-220567

[12] http://thinkprogress.org/justice/2016/05/09/3776434/support-republican-partys-plans-supreme-court-collapsed/

[13] http://thinkprogress.org/justice/2016/05/10/3776868/senate-judiciary-chair-no-problem-trump-appointing-people-supreme-court/

[14] https://www.gjopen.com/comments/comments/182318

[15] https://www.gjopen.com/comments/comments/230497



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