Tick-tock, tick-tock. The political world is officially measuring the distance to this November’s election in days, now. What once seemed endlessly far, the race to Nov. 8 is in the homestretch.
But Oct. 7 is even closer.
If the date doesn’t make anything jump immediately to mind, that’s all right. It probably doesn’t for most people. For United States senators and Supreme Court justice nominee Merrick Garland, though, it is a critical date. Oct. 7 is the last scheduled day the U.S. Senate will be in session before his year’s election.
For court watchers and legal scholars, that means the high stakes poker game between Democrats and Republicans will come to an end. Or at least the first round will. By holding stalwart to their position that the vacancy created by Justice Antonin Scalia’s death should be filled by the next president, Republicans have blocked Garland’s nomination. Without a hearing, there is no vote. And without the Senate in session, there will be no hearing. Barring any massive surprise, this is how the first act will play out.
The aftermath will be catnip to political junkies. Of course, the Supreme Court vacancy will continue to take a primary place on the campaign trail for presidential and senate candidates alike; it has already for months. It is the primary message to drive #NeverTrump conservatives to hold their nose and cast a ballot for him.
But the real question is what happens Nov. 14 when a lame-duck Senate returns to Capitol Hill. With both the presidency and majority control of the Senate up for grabs, the possibilities are myriad.
What happens if Hillary Clinton wins and Democrats win a Senate majority? Will she stick with Garland or will she ask President Obama to withdraw his nomination and go hunting for a new, younger, more liberal justice who would influence the bench for decades? With a brutal electoral map facing Senate Democrats in 2018 (25 seats to defend versus only 8 for Republicans), it might be the only chance President Clinton will have to make a lasting legacy on the Supreme Court.
Or would Republicans fearing such an outcome move to vote on Garland with their lame-duck majority?
Would Clinton’s choice depend on whether she wins with a clear mandate or simply squeaks by? Will she stick with Garland as a safe if not bold choice? What if she wins, but Democrats fail to win the Senate? Do Senate Republicans continue to their blockade?
And that is all before we start asking what happens if Donald Trump wins. As I write this column, the “Real Clear Politics — No Toss Ups” electoral map has Clinton winning 272 electoral votes to Trump’s 266. Trump has overtaken her in moving averages of polls in Ohio, Nevada, North Carolina, and Ohio in recent days. Even if Clinton has the structural advantage, she hasn’t closed the deal.
Similarly, Real Clear Politics currently has Democrats winning only 49 Senate seats to Republicans 51 — one vote shy of allowing Tim Kaine a tie-breaking vote as vice president.
Certainly, President Trump plus a Republican Senate dooms Garland’s nomination. But who Trump would nominate and how it would play out going forward is anyone’s guess. He has listed several potential nominees — including Colorado’s Justice Allison — but he seems wholly unburdened deviating from prior positions in other areas. It wouldn’t be shocking to see the same here.
Regardless of outcome, the immediate aftermath of this November’s election promises to be a powder keg. And the Supreme Court may be the spark to set it off.