Top Senate Democrats are pushing Hillary Clinton to renominate Merrick Garland for the Supreme Court, a move party strategists argue would give her an early advantage against Republicans if she wins the presidency.

They're not waiting until Election Day — or a lame-duck session of Congress — to define the first major decision of a Clinton presidency.


“In her first 100 days, does she want a Supreme Court fight?” asked a senior Democratic aide.

The calls follow months of chatter among Democrats on both sides of Pennsylvania Avenue that Clinton’s smartest political play if she takes the White House would be, essentially, calling the Republicans bluff: they’ve praised Garland, but insisted on a principle that President Barack Obama shouldn’t get to put anyone on the high court in his final year in office.

By sticking with Garland, the thinking goes, Clinton would save herself some of the political capital inherent in making a court nomination, as well as the stress on what would be a brand new White House staff to vet nominee and promote them on the Hill and in the media.

“He’s somebody who the voters clearly think should be confirmed and has the kind of resonating background that would be broadly appealing to voters,” said Geoff Garin, a prominent Democratic pollster. “There are obvious advantages but presidents also like to have the opportunity to make their own choices as well.”

Some Democrats have even mulled the possibility that, if Democrats retake control of the Senate in November, they might move on Garland in the two weeks after the new Senate is in session but before Inauguration Day. That might take on more steam if, despite recent polls showing him far behind, Donald Trump is elected president.

But renominating Garland would mean that Clinton, who’s already running the 2016 campaign as more of an extension of Obama than she ever planned, would have to make one of her first and most significant decisions as president a direct extension of his presidency, long after he’s settled into his new home in Washington's Kalorama neighborhood. It also could cause an instant letdown on the left, which has long been skeptical of Clinton's liberal credentials and may want a pure progressive choice.

“Yes. I would recommend it. I think he’s an extraordinary judge who has a highly, well-qualified rating from the bar associations,” said Senate Minority Whip Dick Durbin (D-Ill.), joining outgoing Senate Minority Leader Harry Reid, who Thursday expressed his support for the renomination in a conference call with reporters.

Durbin and Reid are not alone among Senate Democrats spoiling to give Garland another shot under a new Democratic president. Sen. Dianne Feinstein (D-Calif.) supports renominating Garland, an aide said, as does Sen. Chris Coons (D-Del.). Both are members of the Judiciary Committee.

“I think she should strongly consider renominating him,” said Coons, in an interview late last month during the Democratic convention.

Coons, who said he was still optimistic about the lame duck, warned his Republican colleagues that they shouldn’t let it get to the point when they risk a President Clinton, fresh in office, nominating a younger and more progressive judge.

“He’s somebody who the voters clearly think should be confirmed,” said a prominent Democratic pollster of Merrick Garland. | AP Photo

Reid went further than anyone else on Thursday, professing not only hope that Garland is selected by Clinton but also predicting that the Democratic presidential nominee would choose Garland in an effort not to “rock the boat” upon assuming the presidency.

Incoming Senate Democratic Leader Chuck Schumer, speaking late last month, argued that “the odds of Merrick Garland getting on the court and getting on the court sooner rather than later are higher than you would think.”

But Schumer ducked on whether he thinks Clinton should renominate him.

“I’m not going to judge what she should do,” he said.

Democrats are confident that if Garland received a vote next year he would breeze through the Judiciary Committee and break a filibuster on the Senate floor with support of moderate Republicans and GOP lawmakers who still believe in some deference to the president. Garland already has two GOP senators publicly asking to bring him up for a vote and is likely to find himself increasingly popular among Republicans if Trump continues his sharp slide in the polls.

Sen. Susan Collins (R-Maine) told NBC”s Chuck Todd that Republicans could be “hoisted on their own petard” by ignoring Garland because Clinton may choose someone far more liberal.

“I very much want Judge Garland to be brought up before the full Senate,” Collins told Todd this week. “It would be the height of irony if Hillary wins and asked President Obama to withdraw the nomination so that she can make her own choice, which almost certainly would result in a much more liberal nomination.”

Sen. Jeff Flake (R-Ariz.) has already said that GOP leaders should consider confirming Garland if it appears that their party is going to lose the election. Sen. Mark Kirk (R-Ill.), who’s trying to hold on to his seat this year, has argued for hearing and said he’d consider supporting Garland

The prospect of Clinton going with a new nominee presents other concerns for Democrats. Moderate Democrats like Joe Manchin of West Virginia were already noncommittal about Garland—a more liberal nominee could bleed centrist support. Five Democrats representing red states are up for reelection in 2018, with their voting records under intense scrutiny in what’s already looking like it will be a very difficult year for the party.

Aides to several more liberal senators said their bosses aren’t wedded to Garland, and are deferential to Clinton. During his presidential run, Sen. Bernie Sanders (I-Vt.) said he would withdraw Garland’s nomination as president if the spot remained open, though he often blasted Republicans for blockading Garland as Obama’s choice. Now Michael Briggs, a spokesman for Sanders, said simply: “I'm sure he'd be far preferable to any Trump nominee.”

Sanders “had said he would pick someone different. But it's not going to be his choice,” Briggs said.

As Democrats repeat their current mantra that somehow McConnell will break and confirm Garland this year, Republicans say that by pressing Garland to be renominated, Democrats are effectively waving the white flag for 2016.

“It’s nice that Sen. Reid is reversing himself and no longer claiming that a SCOTUS nominee will be confirmed this year,” said a senior Republican staffer.

The White House has maintained the same position from the beginning: it’s ridiculous that Senate Republicans are engaged in obstructing a Supreme Court nominee, and that the confirmation should come immediately, regardless of the election or other considerations.

Clinton press secretary Brian Fallon declined comment on what she might do as president, but pointed to past statements calling Garland "a brilliant jurist" and saying Republicans have no reason not to confirm him.

But Garland backers have welcomed the swell of support after the Democratic National Convention rolled through Philadelphia with nary a mention of the party’s Supreme Court pick.

“This is obviously promising news for the Merrick Garland camp,” said a Democratic strategist working the confirmation. “If there was ever a lingering sense that he should be tossed to the side should Democrats win in November, this now sends a strong signal that the Senate Democratic leadership will be standing by him.”

The strategist added, “This mostly adds to the inevitability that Garland will be on the Supreme Court—further exposing the Republican stalling tactic for what it is: a joke.”