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In case you've lost track, it's Day 297 since Justice Antonin Scalia died, and Day 266 since President Obama nominated Merrick Garland to fill his seat. on the Supreme Court. Republicans held firm on their contention that a sitting president shouldn't be able to have a SCOTUS nominee confirmed if that president is a Democrat, so here we are. But there are some very good reasons—for Republicans and Democrats—to seriously consider the new nuclear option proposed by David Waldman.
To briefly recap—and for the procedural background reading David's piece is critical—there's a window on Jan. 3 when Vice President Joe Biden will be presiding over the Senate to swear in the new and just re-elected senators in which Democrats have a 36-30 majority. If President Obama chooses to do so, he could renominate Merrick Garland. If Biden chooses to do so, he could recognize Illinois Sen. Dick Durbin as the de facto Senate leader (Chuck Schumer won't be sworn in yet, and remember, in this window Democrats have the majority). If he chooses, Durbin could "go nuclear" and seek a ruling from Biden that the Senate was not bound by the rules of the previous session. Biden could rule thusly, and give Durbin a message from President Obama that he has renominated Garland. Durbin would put it to the current 66 senators for a vote, and the majority Democrats would confirm Garland.
There's a whole mess of ifs involved in that scenario, but there are very good reasons why Democrats should be considering it—and even one for Mitch McConnell.
First of all, if Joe Biden is truly contemplating a 2020 run for president, what a way to kick off his campaign! He would be a hero. He'd have that 2.7 million popular vote winning total Hillary Clinton received entirely on his side. That'd be awfully handy to have going into a campaign.
But say we don't have to get that far. Say that Biden and Senate Democrats start plotting this, and that they clue Mitch McConnell in to that plotting. If they're taking it seriously and bringing the Democratic caucus together to work it out, then McConnell might think twice about not allowing a confirmation of Garland to go through in the next three weeks, before the new Congress begins.
Before you completely dismiss that notion, think about this. Were Democrats to show that they are serious in attempting this, McConnell would know they're serious about using the filibuster on Trump's eventual nominees. McConnell is already under a lot of pressure from various outside conservative groups and his own senators to end the filibuster on Supreme Court nominees. But he's also facing deeply-entrenched opposition to doing that from within his conference. By allowing a confirmation of Garland by the end of this year, that's a fight he doesn't have to wage. If all his 2018 dreams come true and he gets a filibuster-proof majority, he'll avoid it entirely. Any way you slice it, it's a headache removed from McConnell. At least until the next vacancy.
All of which adds up to some very good reasons for Democrats to not dismiss this idea, and for McConnell to maybe even encourage them in it.
