If Dems get a chance to confirm Garland in the lame duck session, they should take it

Merrick Garland

At last Thursday's Democratic debate, moderators asked Democratic presidential candidates Hillary Clinton and Bernie Sanders a question from NY Daily News reader Hannah Green regarding Obama's nomination of Merrick Garland to the Supreme Court vacancy left by the death of Antonin Scalia.

Hannah Green (ph) wants to know your position, Secretary Clinton, regarding President Obama's nomination of Merrick Gaarland to the Supreme m Court. President Obama said earlier this week that he would not withdraw the nomination, even after the presidential election. If elected, would you ask the president to withdraw the nomination?

Both Clinton and Sanders said that the currently support the nomination and strongly denounced Sen. Republicans for obstructing Garland's appointment. But they differed on whether they would ask Obama to withdraw the nomination if they were elected president: 

Clinton indicated acceptance of Obama's pick:

I am not going to contradict the president's strategy on this. And I'm not going to engage in hypotheticals. I fully support the president.

Sanders said he would ask Obama to withdraw the nomination:

...obviously I will strongly support that nomination as a member of the Senate. But, if elected president, I would ask the president to withdraw that nomination because.... I think that we need a Supreme Court justice who will make it crystal clear, and this nominee has not yet done that, crystal clear that he or she will vote to overturn Citizens United and make sure that American democracy is not undermined.  

(Debate transcript from CNN.)
I want to be careful about extrapolating inaccurate meanings from their words, but it seems that Clinton is indicating that she'd be open to having Garland confirmed to the court in a lame duck session if Democrats retain the presidency and retake the Senate. Sanders, on the other hand, would want to wait to get a better judge (meaning younger, more liberal and perhaps non-white or female.)

I agree with Clinton.  I think the costs of passing up a chance to get Garland on the bench are greater than the gains of holding out for some one potentially better (in the admittedly extremely low chance that Garland ever actually gets a vote).  Hit the jump for my reasoning.

Don't get me wrong: Sanders is taking a legitimate position and I understand the appeal. A Democratic Senate might be able to get at least a younger (see Jane Kelly or Sri Srinivasan), or and/or perhaps a more liberal (Cornelia Pillard, anyone?) justice on the bench.  The idea would be to lock a surefire vote for progressives on the bench for 20-25 years instead of 10-15.

But there are two sets of costs to this strategy as well that I think likely outweigh the gains.

(Note that this analysis assumes an incoming Democratic president and Senate, which is the only circumstance under which Republicans would even consider confirming Garland)

First,  a confirmed judge Garland on the bench immediately takes his commission and joins oral arguments in December or January, while a nominee in a Sanders administration would take some time to get confirmed. That's important, because there might be some important cases coming down the pike that will be heard that he can participate in. It took 87 days from her nomination to confirm Elena Kagan in 2010, and 65 days to seat Sonia Sotomayor in 2009. Considering that any incoming administration is going to be taking up precious Senate floor time getting more than a dozen cabinet officials and other personnel confirmed -- including the attorney general and deputies, which go through the judiciary committee -- a Supreme Court justice might take even longer.

Second,  there's an opportunity cost for Democrats to not confirming Garland if they have a chance to do so.  Supreme Court justices take massive amounts of resources in both the administration and the Senate to move through the confirmation process, even assuming that no one is trying to obstruct the process.

If Garland is on the bench, all of those resources can be spent on doing other productive things that need to be done....

.... like potentially vetting and approving another Supreme Court justice. Ruth Bader Ginsburg will turn 85 this year, and Stephen Breyer will turn 79. It's pretty likely that one or both might choose to step down in the first year of a Clinton or Sanders presidency, especially if the Democrats take a majority of the Senate. And Anthony Kennedy will be 81 in 2017. Replacing any or all of those seats helps solidify the progressive position on the court.

But Supreme Court justices aside, it'd still be great to spend time and resources  pushing through other federal judges to fill the vast number of vacancies in the courts instead of re-litigating a potential Supreme Court nomination. Remember that the vast majority of cases are settled at the district level, and most of the rest An extra 15-20 district judges in the first two years of a new Democratic administration would fill unused seats, lower case loads and speed up justice in hundreds of routine civil cases that aren't routine to the victims of discrimination and theft that file them. An extra three or four appellate judges would nudge the balance of power on important appeals courts further toward the progressive edge and lower the potential for circuit splits. A Fifth Circuit with only a 10-7 or 9-8 Republican majority would provide three-judge panels that on the balance were much less scary for progressive litigants pressing claims on every thing from reproductive and labor issues to voting rights, civil liberties, immigration and the environment than the current 10-5 split does. Ditto for the Sixth, Seventh and Eighth circuits, all of which still sport large majorities of Republican-appointed judges.

And using this precious floor time wisely becomes doubly important, because the Democrats face an utterly brutal landscape in the 2018 Senate races: defending seats in dark red North Dakota, Missouri and Indiana and West Virginia, as well as in Montana, Ohio, Pennsylvania, Florida, Virginia and Wisconsin.

That ain't going to be easy, folks.  Best make hay while the sun shines. Sending back a good Supreme Court pick to try to get an great one isn't the best use of an incoming president's or Senate's time when we're going to have a lot of open lower court positions to fill -- if not another Supreme Court vacancy.