Bad News -- Or Not -- For Chief Judge Garland's SCOTUS Hopes

Let's parse the latest comments by Hillary Clinton on her approach to SCOTUS appointments.

(Photo by Chip Somodevilla/Getty)

(Photo by Chip Somodevilla/Getty)

Does Chief Judge Merrick Garland have a shot at winning a seat on the Supreme Court? Absolutely.

First, Chief Judge Garland could get confirmed in the lame-duck session of the Senate, after the election but before the new president takes office. Second, if Hillary Clinton wins the presidency, he could get renominated.

As I discussed when reviewing 11 possible SCOTUS nominees in a Clinton Administration, Judge Garland could very well get renominated by President Hillary Clinton, especially if the Republicans kept the Senate. As noted by experts like Neal Katyal and Nicole Austin-Hillery at an ABA event in August, it’s the pragmatic thing to do in terms of spending political capital.

But have the chances of Judge Garland getting nominated by President Clinton gone down? Here’s a report from Mike Dorning and Greg Stohr for Bloomberg Politics:

Democratic presidential candidate Hillary Clinton said she wouldn’t be bound by President Barack Obama’s nomination of Merrick Garland to the Supreme Court, hinting that she would consider a bolder choice if she takes office in January with the seat still unfilled.

Clinton would “look broadly and widely for people who represent the diversity of our country” if she has the opportunity to make “any” Supreme Court nominations, she said in a radio interview that aired Thursday on the Tom Joyner Morning Show.

Chief Judge Garland is brilliant and all, but as a 63-year-old (almost 64) white male with two Harvard degrees, he won’t be carrying the Promethean fire of diversity to SCOTUS. If you look at the 11 names on Clinton’s possible shortlist, Garland is the only one who isn’t a woman or minority.

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Here’s the good news for Garland:

Clinton said she wouldn’t ask Obama to withdraw Garland’s nomination after Election Day, leaving open the possibility he could be confirmed with her implicit blessing in a congressional lame-duck session.

“I think we should stick with one president at a time,” Clinton said. “I’m going to let this president serve out his term with distinction and make the decisions that he thinks are right for the country.”

So here’s what Senate Republicans are looking at: going back on their promises of no SCOTUS vote by confirming a moderate, impeccably credentialed, mid-sixties white male in the lame-duck session, or trying to oppose a more liberal, more diverse, and much younger nominee in early 2017, almost certainly with fewer Senate votes.

That’s not an attractive set of options. A basket of deplorables, if you will.

Clinton Says She May Not Choose Garland for Supreme Court [Bloomberg Politics]

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Earlier: Hillary Clinton’s Supreme Court Shortlist: 11 SCOTUS Possibilities
Experts Weigh In On The Current State Of The Supreme Court
Does Judge Merrick Garland Even Stand A Chance Of Winning A Seat On The Supreme Court?


David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.