Call the GOP's bluff on Merrick Garland

Aaron Kall

Free Press guest writer

Judge Merrick Garland speaks after being introduced by U.S. President Barack Obama as his nominee to the Supreme Court in the Rose Garden at the White House, March 16, 2016 in Washington, DC. Garland currently serves as the chief judge of the United States Court of Appeals for the District of Columbia Circuit and if confirmed by the US Senate, would replace the late Supreme Court Justice Antonin Scalia who died suddenly last month.

Aaron Kall is director of debate at the University of Michigan.

President Barack Obama's job approval rating in the latest Washington Post-ABC News Poll stands at a robust 53%. Other recent polls from Monmouth University and CNN/ORC respectively show a 56% and 54% job approval rating, which is about 10 points higher than the average U.S. president during this point in office. While Obama's political capital at this stage of his presidency closely mirrors the second terms of Ronald Reagan and Bill Clinton, it's now been over 150 days since he's nominated Judge Merrick Garland to the Supreme Court to fill the vacant seat of Justice Antonin Scalia. On July 19, Garland officially broke the record of Louis Brandeis, who endured a wait of 125 days between nomination and confirmation to the Court.

Given his strong job approval rating and Democratic presidential nominee Hillary Clinton's sizable leads in national and battleground-state polls, Obama should channel Republican presidential nominee Donald Trump and pen his own “Art of the Deal” by telling Sen. Chuck Grassley, chairman of the Senate Judiciary Committee, that he will withdraw the nomination of Garland unless his confirmation hearings are underway by Sept. 6 when the Senate reconvenes after Labor Day.

Trump’s No. 1 negotiating tactic in his 1987 best-selling book Art of the Deal is to “think big.” Obama should heed this advice by acknowledging his own political strength and significant lead that Clinton currently enjoys over Trump in both national and swing state polls. She has a nine point lead among registered voters in the latest NBC News/SurveyMonkey Weekly Election Tracking Poll released on August 16.

►USA TODAY:Fill Supreme Court vacancy

Clinton is also performing exceedingly well in recent battleground-state polls. A Monmouth University poll from August 16 established a nine point lead in Florida. A Washington Post poll released on August 16 indicated a 14-point lead among registered voters in Virginia. A Fox 2 Detroit/Mitchell Poll on August 16 found a 10-point lead for Clinton in Michigan. The Marquette University Law School poll released on August 10 revealed a 13-point Clinton lead in Wisconsin. Traditionally reliable red states may even be in play during this election cycle, as Clinton remains within striking distance in places such as Arizona, Georgia, Indiana, Kansas, Missouri, South Carolina, and Texas.

If Obama were to expend some of his remaining political capital by demanding the start of Garland hearings by Sept. 6, Grassley would be forced into a tight political corner. Garland is 63 years old and has a fairly centrist record of deciding cases. Assuming that Clinton remains a prohibitive favorite to win the general election and would get to make her own appointment to the Supreme Court, she certainly would have the opportunity to choose a younger and more liberal nominee. Paul Watford, Sri Srinivasan, Mariano Florentino Cuéllar, Lucy Koh, Cory Booker, Goodwin Liu, Neal Katyal, and Ketanji Brown Jackson are all politically further to the left than Garland and under the age of 50. Faced with this ultimatum and dose of reality, the prospect of Garland hearings in September could become more appealing to Grassley, who is facing his own re-election battle in Iowa.

In late June, the American Bar Association completed its months-long review of Garland’s professional qualifications and deemed him as “Well Qualified”, which is their highest possible rating. In addition to the ABA, a bipartisan coalition of politicians and legal aficionados have vouched for the qualifications and record of Garland. While Grassley hasn't yet expressed the time nor the inclination to convene public hearings, Obama should use his newfound political strength and the current lopsided state of the presidential race to draw a line in the sand and force Grassley to seriously contemplate moving forward on this important, yet stalled nomination of Judge Merrick Garland. It would certainly be a shrewd and calculated political move from a position of strength that could help cement the legacy of a president with only five months remaining in office.

Aaron Kall is director of debate at the University of Michigan.