By Alexander Bolton - 03/17/16 06:21 PM EDT
Senate Republican leaders are tamping down talk in their conference of voting on Merrick Garland’s nomination to the Supreme Court in the lame-duck session after the November elections.
Sen. Orrin HatchOrrin HatchInternet companies dominate tech lobbying Senate panel approves pension rescue for coal miners Overnight Tech: GOP says internet fight isn't over | EU chief defends Apple tax ruling | Feds roll out self-driving car guidelines | Netflix's China worries MORE (R-Utah), a senior Republican on the Judiciary Committee, on Wednesday floated the idea of voting on Garland later this year if Hillary ClintonHillary Rodham ClintonMcCaskill goes after Trump's weight Poll: Clinton leads big among 'Hamilton' listeners, 'Morning Joe' viewers Gingrich: FBI head would cover up Watergate MORE wins the presidency. Hatch describes himself as a good friend of Garland’s and helped move his nomination to the D.C. Circuit Court of Appeals through the Senate in 1997.
But the talk of eventually confirming Garland has agitated GOP leaders because it undercuts their argument that the vacancy should only be filled by the next president.
Senate Majority Whip John CornynJohn CornynCornyn: White House 'MIA' during 9/11 debate Senate overrides Obama 9/11 veto in overwhelming vote Cornyn ramps up support for 9/11 bill before veto override vote MORE (R-Texas) on Thursday tried to slam the door on a lame-duck confirmation.
"I know there have been some members of the press who asked about well, if not now, how about in a lame-duck session of the Congress," he said on the Senate floor. "I think that is a terrible idea."
"I, for one, believe we ought to be consistent, and that consistent principle is the American people deserve to be heard and their voices heeded on who makes that selection to something as important as filling this vacancy on the Supreme Court," he said.
Senate Majority Leader Mitch McConnellMitch McConnellSenate passes funding bill to avoid shutdown Conservative groups deliver last-minute warning to GOP on spending bill Congress votes to override Obama for first time MORE (R-Ky.) is also opposed to the idea, according to GOP lawmakers and staff.
“He said after the next president is sworn in,” a McConnell spokesman said.
McConnell and Senate Judiciary Committee Chairman Chuck GrassleyChuck GrassleyLeahy wants Judiciary hearing on Yahoo The Trail 2016: Fight night Clinton, Trump tied in Iowa, Grassley leads in Senate race MORE (R-Iowa) told Obama at the beginning of the month that the Senate would not consider his nominee this year.
“The American people will be heard, and the next Supreme Court justice will be determined once the elections are complete and the next president has been sworn into office,” McConnell and Grassley said in a joint statement before meeting with Obama.
Another lawmaker close to McConnell said it would be “insincere” for Republicans to turn around in the lame duck and consider Garland after refusing for months to even hold a hearing.
But other Republicans don’t want to rule out the possibility of a December vote on Garland, who is viewed as more centrist than other potential Democratic nominees.
Trump’s commanding lead in the Republican presidential primary has left many GOP senators less optimistic about the chances of beating Clinton in the general election — and less optimistic about getting a more conservative judge on the court.
“The only position I’ve had is, ‘Hey, I’m concerned about the direction of the court,’ and so if we come to a point where we’ve lost the election and we can get a centrist like Garland in there as opposed to someone like Hillary Clinton might appoint, then I’d go for it,” Sen. Jeff FlakeJeff FlakeObama defeat is Schumer victory Top GOP chairmen investigating foreign visa program Pence rallies GOP before final stretch MORE (R-Ariz.), another member of the Judiciary Committee said Wednesday.
Other Republicans have expressed similar sentiments privately.
“I would do that. We’d probably get someone worse from Hillary Clinton,” said another Republican senator, who requested anonymity so as not to publicly disagree with McConnell.
Another Republican senator said the GOP conference is divided over the question. One faction has argued vigorously against even discussing the possibility of confirmation hearings or a vote in December because “it undercuts our argument.”
But other lawmakers think Garland, who has nearly 20 years experience on the appellate court and is well-respected by conservatives and liberals alike, might seem like a superior choice a year from now.
As a judge on the D.C. Circuit, Garland has tended to side more often with prosecutors on criminal justice questions than other Democratic appointees.
Another factor that makes him more palatable to Republicans is his age. He’s 63 years old, and likely wouldn’t serve as long on the high court as two others who were on Obama’s shortlist: Sri Srinivasan of the D.C. Circuit, who is 49, and Paul Watford of the 9th Circuit, who is 48.
“There’s concern about who Trump and Clinton would pick,” the lawmaker said.
A senior Democratic aide said it would completely “incoherent” for Republicans to refuse to review Garland’s nomination only to speed him through the chamber after the election but before Clinton takes office.
The pressure from GOP leaders appears to have had an effect.
Hatch on Thursday backed off his earlier statement that he would be open to confirming Garland in the lame duck.
“I think we should wait until the next president,” he said, adding that he “could have misspoken” when asked if he had changed his mind.
Hatch said Garland should be treated with the greatest possible respect and “that’s why it should be put off until not only after the election but until the next president takes office.”
But Hatch added that it would be hypocritical for Democrats to turn around and try to block Garland in December.
“If you get into a lame-duck session and they oppose him, you know darn well this is a game,” he said. “That would assume Hillary Clinton is the president.”
Jordain Carney contributed.