Merrick Garland meets with Senator Joe Manchin (D-W.V.) in the Hart building on April 5. | John Shinkle/POLITICO Democrats running out of options in Garland fight

Merrick Garland’s highly anticipated Supreme Court nominee questionnaire — unsolicited by Republicans — came and went last week without making a major splash. Millions of dollars have been spent on ads, with little movement on either side. Now, Senate Democrats will hold a forum Wednesday, featuring proxies for Garland, but that may be the closest the chamber gets to a confirmation hearing for him before November.

Meanwhile, the White House has run through essentially all of the Republicans who have been willing to sit down for a courtesy meeting with Garland. None has backed away from the blockade. And in some cases, those meetings have even reinforced Republican opposition against Garland, the respected chief judge of the D.C. Circuit Court of Appeals.


Public polling suggests many voters back the Democratic position, but that fact hasn’t budged Republicans from their dug-in opposition. And the Democrats’ break-glass-in-case-of-emergency option — running through procedural hoops to force a vote on Garland’s nomination — remains on the table, but comes with its own potential risks.

“We’re determined to be endlessly ingenious,” said Sen. Richard Blumenthal (D-Conn.), who serves on the Judiciary Committee.

Senate Democrats are quickly running out of maneuvers to keep Garland front and center and in the headlines, as the prospects of securing a confirmation hearing — much less getting Garland installed at the nation’s most powerful court — grow dimmer by the day.

Still, Democrats and Republicans are measuring success by different metrics. For Republicans, their win is that Garland is not getting confirmed before the November elections. But for Democrats, their ultimate victory could lie in the possibility that voters will punish incumbent GOP senators for their role in the Garland blockade.

Privately, Democrats are confident that denying Garland a vote has already done severe political damage to the GOP brand. And now, Democrats are increasingly talking up gridlock at the high court, pointing to recent deadlocked decisions and unresolved cases in order to continue the pressure to fill the vacancy left after Justice Antonin Scalia’s death.

“This evenly divided Supreme Court and recent decisions remind us how important it is to have a full complement of nine justices,” Illinois Sen. Dick Durbin, the second-ranking Senate Democrat, said Tuesday. “But the real question is whether Republican senators start feeling the heat back home for this historically wrong decision not to even give him a hearing or a vote.”

For two months, Senate Republicans have successfully maintained their obstruction of Garland’s nomination, despite public sentiment to the contrary and a national campaign, waged in part by former Obama White House aides, to pressure vulnerable GOP senators to confirm the veteran jurist.

But Democrats are solidly winning the court of public opinion. Polls consistently show the public favors a hearing and a vote for Garland, with a CNN/ORC survey this month showing that 67 percent of voters say Garland should get a confirmation hearing, with both conservatives and liberals increasingly saying Garland deserves to appear before the Judiciary Committee.

In Florida, Ohio and Pennsylvania — key states that Republicans have to hold in order to maintain their Senate majority — a plurality of registered voters support confirming Garland to the Supreme Court. A more emphatic majority backed giving Garland a hearing and a vote. Still, it’s too early to say whether the Supreme Court issue alone could sink incumbent GOP senators.

“The damage is done,” said Adam Jentleson, a top aide to Minority Leader Harry Reid. “In one fell swoop, Sen. McConnell wiped out any hope of convincing the public that the Republican Senate works, and he’s driving the point home by working fewer days than any Senate since 1956.”

Some Democrats are privately comparing the Republicans’ Garland resistance to the disastrous Obamacare rollout that began in late 2013, which clouded Senate Democrats’ runs for reelection in 2014 and likely played some role in Democrats losing their majority that fall.

Back in the Senate, however, polls and public sentiment in favor of filling the vacant seat have mattered little to Republicans in filling the seat. Still, just two GOP senators support following through on the confirmation process this year.

“I think most people have reconciled themselves to the fact that Judge Garland is not going to get confirmed,” Senate Majority Whip John Cornyn (R-Texas) said. “So [Democrats] ought to just get used to that.”

Senate Democrats do have one key weapon left in their arsenal that is sure to grab attention and provoke Republicans: forcing a vote on the Senate floor to discharge his nomination from the Senate Judiciary Committee.

The procedural hurdles are complicated. For instance, the Senate would have to be in executive session for the Democrats to be able to pull off the maneuver, but Republicans could easily stop the chamber from going into executive session in the first place. But whatever vote occurs on the floor could be translated into a referendum on Garland.

There also are strategic considerations at play. With this gambit, Democrats could risk undercutting their key argument that Garland deserves a full hearing before the Judiciary Committee, since discharging a nomination technically means senators are circumventing a hearing. It could also make an already contentious confirmation battle even more toxic.

At a news conference last week, Reid indicated that the procedural maneuver was still an option for Democrats, but said “at this stage,” the process for Garland should go on as any nominee normally would. And Durbin on Tuesday noted that the strategy is “not an easy thing to accomplish.”

Blumenthal is one Senate Democrat who sounded reluctant about using procedural tactics to force a vote on Garland.

“My feeling is that we should avoid showmanship and stick to the facts and substance,” he said. “Ultimately, his nomination is about his impeccable credentials and background and quality of service. I think we should just continue to raise his qualifications.”

So while they continue to push Garland, Democrats are getting creative.

On Tuesday, Democrats such as Sens. Ben Cardin of Maryland and Tim Kaine of Virginia used the anniversary of Brown v. Board of Education, the landmark Supreme Court decision that ruled racial segregation at public schools unconstitutional, to highlight Garland’s stalled nomination.

And Democrats say more Supreme Court results like the one issued Monday — when justices sent a high-profile contraception case back to the lower courts instead of issuing a decision — will give plenty of reasons to keep discussing Garland and the impact of a short-handed court. Major decisions are still expected this term from the Supreme Court on cases involving highly charged issues such as immigration, abortion and the corruption case of former Virginia Gov. Bob McDonnell — rulings that could easily go 4-4.

Maine Sen. Susan Collins, one of the two Republicans who support moving forward with Garland’s nomination, said it is unclear whether her party’s blockade will have a discernible political impact this fall.

“I don’t know how it plays in various states,” Collins said. “In Maine, I’ve received comments both ways but generally very positive to the fact that I’ve called for the process to proceed … [but] Maine is such a good, fair-minded state.”

