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SCOTUS Nominee Is A Hot Potato For Some Republicans

Republican Senators don't argue about Judge Merrick Garland's qualifications to be the next Supreme Court Justice. Garland is the chief judge of the U.S Court of Appeals in Washington, D.C.

They dislike that President Obama nominated him during an election year, during his last year in office, and that the moderate Garland would replace conservative icon Antonin Scalia.

But the refusal by Majority Leader Mitch McConnell and Judiciary Committee Chairman Charles Grassley to hear an Obama nominee could hurt incumbents in some states. That's according to Artemus Ward, a political scientist at Northern Illinois University who studies the high court.

"There are seven or eight Republican senators running in blue states, including Mark Kirk here in Illinois," Ward said. "They have tough re-election fights and they don't want to look obstructionist so, in that sense, McConnell and Grassley are making it difficult for them."

Kirk has called for hearings; but his opponent, Democrat Tammy Duckworth, is hammering Kirk to demand hearings for Garland before the election.

Other incumbents could benefit from a "No Hearings" stance which, Ward says, plays to the GOP base. According to Ward, this could boost turnout for Grassley and other candidates. "And certainly the ads are going to paint Judge Garland as a liberal, even though he is not." Ward said.

Ward said President Obama could've played to the Democratic base by nominating a woman or ethnic minority, but chose not to.

"Very strategic and very shrewd," said Ward. "He thinks the base will be energized enough, so this is more of a calculation to show that he's above partisanship -- and it puts pressure on Republicans to confirm the nominee."

Ward says Obama has a couple of options where he could get the Senate to approve Garland's nomination. The first option depends on a Democratic takeover of the Senate in November.

"They won't take control of the Senate until January 2nd," he said. "But the old president will still be in office for three weeks. So you could have a new Senate approving an old president's nominee."

Credit Wikipedia
Judge Merrick Garland, Supreme Court nominee

Ward cautions, however, that Republicans would still have power to block the nomination. "Ted Cruz has signaled that he'll filibuster any Obama nominee that might get to the Senate floor," he said.

What's more intriguing to Ward is the possibility of a recess appointment, which would allow Judge Garland to serve one year on the high court.

"What's interesting then," Ward said, "is that Judge Garland is eligible to retire in November, 2017." He points to the Rule of 80 which determines when federal judges  (including Supreme Court Justices) can retire from their lifetime appointments with full benefits.

Ward says Garland could continue working as a federal judge after leaving the high court, draw a pension, and keep working as a federal judge.

"People say to me, `Why would Garland put himself through this gauntlet where these negative ads are going to be tossed against him?'" Ward laughs. "It may be that he's going to end up on the Supreme Court no matter what the Senate does, with a recess appointment, and continue to be a lower-court judge for the rest of his life with a salary and full pension. That's a pretty good deal!"

Good morning, Early Riser! Since 1997 I've been waking WNIJ listeners with the latest news, weather, and program information with the goal of seamlessly weaving this content into NPR's Morning Edition.
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