In Case Clinton Wins, Senate Should Prep Garland

Judge Merrick Garland of the United States Court of Appeals speaks at the White House in Washington, D.C., on March 16 while standing between Vice President Joe Biden and President Barack Obama after being announced as a nominee for the Supreme Court. The author argues that there is no harm in Republican senators vetting Garland and making him ready to be approved should Clinton win the White House. Kevin Lamarque/Reuters

This article first appeared on the American Enterprise Institute site .

The U.S. Senate has every right to decline to consider Judge Merrick Garland, President Obama's nominee to the Supreme Court. But refusing to even hold a hearing is bad logic and bad politics.

While the Senate GOP and their conservative allies cast this choice as a "principled stand in favor of the Constitution" and necessary to "allow the American people to play their rightful role" at the voting booth, it's actually just a gamble with bad odds.

Moreover, Senate Republicans are sacrificing a valuable option to make a decision about Garland in the lame duck session, an opportunity that exists only if they fully vet him beforehand.

Betting markets ascribe a 70 percent probability that the next president will be a Democrat. And, if Democrats win the White House, there is a real risk that they may also win a Senate majority.

If that happens, the Senate GOP strategy would empower Hillary Clinton to nominate the next Supreme Court justice, with the support of a Democrat-controlled Senate and the political momentum of a newly elected president.

Of course, betting markets can be wrong. Perhaps a strong constitutionalist like Ted Cruz would choose the next Supreme Court justice. Or, maybe Donald Trump will be able to nominate "Scalia reincarnated." Conservatives and Senate Republicans should not give up hope.

But the Senate should be patient and deliberate, not preemptively rejectionary. Refusing to even vet Garland ensures Clinton has the ability to nominate the next Supreme Court justice should she win in November.

Republicans should carefully examine Garland's qualifications. They should embrace the opportunity to distinguish their views from his and explain to the American people the type of nominee they consider suitable for the highest court.

And then they should wait. With a fully vetted Supreme Court nominee and every senator informed, the Senate Republican majority could leave every option on the table.

If the Republican nominee beats the odds in November, the Garland nomination could be set aside and nothing is lost. But if a Democrat wins, and if Republicans determine that Garland is preferable to what they expect from the next president, Republicans could confirm him.

In financial markets, investors pay real money for the option to buy or sell an investment at a point in the future when they have more information than today. In this context, though, the option is free—maybe better than free.

Because polling data suggest that many voters are put off by Republicans' preemptive refusal to consider Obama's nominee, Republicans may win points with their constituents if they demonstrate themselves capable of governing in at least considering Garland. And the vetting process will allow Republicans the opportunity to distinguish their judicial philosophy from Obama's.

Senate Republicans should at least proceed with the consideration of Garland nomination. There's nothing to lose, and by creating an option for themselves in the fall, there may be something to gain.

Alex Brill is a research fellow at the American Enterprise Institute.

The American Enterprise Institute for Public Policy Research (AEI) is a nonpartisan, nonprofit, 501(c)(3) educational organization and does not take institutional positions. The views expressed here are those of the individual author.