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Cracks Appear in GOP Ranks Over Supreme Court Pick

Could Garland be confirmed by a lame duck Congress?

Sen. Orrin Hatch, R-Utah, a former chairman of the Judiciary Committee and now part of the GOP leadership team, says he's open to possibly considering President Obama's Supreme Court nominee after the November election. (Photo By Bill Clark/CQ Roll Call)
Sen. Orrin Hatch, R-Utah, a former chairman of the Judiciary Committee and now part of the GOP leadership team, says he's open to possibly considering President Obama's Supreme Court nominee after the November election. (Photo By Bill Clark/CQ Roll Call)

Despite fierce GOP opposition to allowing President Barack Obama to appoint another Supreme Court justice, some Republicans are suggesting his pick could be confirmed after the November election, particularly if Democratic hopeful Hillary Clinton is the next president.  

Fissures started appearing in the Republican rampart almost immediately after Obama announced his choice of Merrick Garland, D.C. Circuit Court of Appeals’ chief judge, on Wednesday.  

Several members say they’ll meet with the nominee, and Judiciary Chairman Charles E. Grassley didn’t rule out a conversation. Senate Majority Leader Mitch McConnell, R-Ky., a man noted for his calm and stoic demeanor, delivered an impassioned speech on the Senate floor reiterating the point he made mere hours after the death of Justice Antonin Scalia last month — that the next president should have say over who filled Scalia’s chair.  

“The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be,” McConnell said. He said he repeated that point to Garland in a phone conversation on Wednesday.  

As McConnell spoke, he was flanked by members of his leadership team, Majority Whip John Cornyn of Texas and Policy Committee Chairman John Barrasso of Wyoming, as well as Judiciary Chairman Charles E. Grassley of Iowa and Senate President Pro Tempore Orrin G. Hatch of Utah, a former Judiciary chairman himself.  

But the dynamics of the 2016 presidential race has cast a pall over the business of Congress. And as front-runner Donald Trump racks up delegates in the GOP nomination contest, some Republicans, including those close to McConnell and on Grassley’s panel, want to leave themselves a way out.  

“I’d probably be open to resolving this in the lame duck,” Hatch said after the president made his announcement. Later he clarified, “I’m open to it, that doesn’t mean I’m for it.”  

At the end of each Congress, members return to the Capitol for a few weeks after the election, often wrapping up loose ends. The Senate has scheduled 20 work days between Nov. 14 and Dec. 16 for its lame duck session, but could extend that, as needed.  

By then senators will know who will be sitting in the White House and who will control the Senate, come January. At that point, some Republicans might be more comfortable with Garland, who is considered a moderate, than a pick made by, say, Clinton.  

Sen. Jeff Flake of Arizona, a member of the Judiciary Committee, said he would consider a lame-duck confirmation in the event Republicans lose big in November. “Well yes. I mean, I think anybody that’s being honest would.”  

Flake said he spoke directly with the president about 30 minutes before Obama’s announcement. Flake said the president informed him Garland would be the nominee, and Flake said he would be willing to meet with Garland.  

Sen. Susan Collins, R-Maine, also said she would meet with the nominee.  

“I have never refused an offer to meet with a nominee to the Supreme Court. That has always been my standard practice and so I have accepted that offer and it will be scheduled after the recess,” Collins said.  

Collins further deviated from her leadership’s position, saying Garland should also get a hearing. “It’s premature for us to set a schedule,” she said. “But what I do believe is that this a distinguished jurist who has been on the court for 19 years and his record deserves careful scrutiny and that’s going to take a while.  

Still, many Republicans held the line.  

Sen. Rob Portman, R-Ohio, who faces a tough re-election battle against former Democratic Gov. Ted Strickland, said he wasn’t planning to change his position opposing the nomination.  

“If this court of appeals judge wants to meet with me, I’m willing to do that. … I don’t think it will be a particularly good use of his time because I plan to talk to him about why I’m taking the position I’m taking on a principled basis,” said Portman, a member known for both his policy acumen and his ability to work across the aisle.  

Cornyn also stuck to his guns when asked what would happen if Democrats won the White House and the Senate. “That’s an amazing hypothetical question,” he responded. “This person will not be confirmed so there’s no reason going through some motions and pretending like it will happen, because it’s not going to happen.”  

Grassley said he spoke to Garland on Wednesday, and while he held the line on his opposition, he didn’t definitively rule out meeting with the nominee.  

“I congratulated him and said that, you know, things are pretty much as you heard us say. You know the nomination’s not moving forward, and that’s pretty much it,” Grassley said.  

As for a meeting, “I told him to call back after Easter, or I mean after our spring break, and I was going to talk to him then.” The Senate is scheduled to return from its break the week of April 4.  

Sen. Charles E. Schumer, D-N.Y., said it was a matter of time before more Republicans began to change their tone. He said the fact that some are willing to meet with Garland shows they may be wavering.  

“I think given how strong a nominee it is, more ice is going crack soon,” he said.  

He added that he believes McConnell will back down, pointing to Republicans reversing course during the 2013 government shutdown.  

Schumer didn’t see the logic of a lame duck confirmation. “That does not solve the problem of a [vacancy on the] Supreme Court,” he said. “But again, it shows they’re backing off. If they’re willing to do it in the lame duck, I guess it’s not their version of let the people decide, is it?”  

Asked if a “Majority Leader Schumer” — if Senate control switches in November — wants Garland as the nominee next year, the Democrats’ leader-in-waiting took the question in stride.  

“Majority Leader Schumer wants to fill, will be happy to say ‘hello’ to Supreme Court Justice Garland on the night of Hillary Clinton’s State of the Union,” he responded.  

As for the White House, Press Secretary Josh Earnest saw no reason to delay. “There is absolutely no reason to wait until the lame duck,” he said. At the same time, he noted “This nomination does not have an expiration date.”  

Sen. Lindsey Graham, R-S.C., who last week warned his Judiciary Committee colleagues that a new Democratic president could nominate a far more liberal pick, said he didn’t see a confirmation happening before the next president takes office.  

Contact Dick at and follow him on Twitter at @jasonjdick.
Contact Lesniewski at and follow him on Twitter at @nielslesniewski.

Contact McPherson at and follow her on Twitter at @lindsemcpherson

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