Will all the GOP senators who lose their reelection bids sit it out?
Sen. Orrin Hatch (R-Utah) said he may be open to considering Merrick Garland for the Supreme Court in December.
Sen. Orrin Hatch (R-Utah) said he may be open to considering Merrick Garland for the Supreme Court in December.
J. Scott Applewhite/Associated Press

WASHINGTON -- GOP senators remained firm Wednesday that they won't consider President Barack Obama's Supreme Court nominee until after the election, hoping that a Republican will win the White House and nominate a conservative to replace the late Antonin Scalia.

But for the first time, senators indicated that they might be willing to take up Obama's nominee during the lame duck session in December, if they lose the presidential election.

"I'd probably be open to resolving this in a lame duck," Sen. Orrin Hatch (R-Utah) said.

Hatch's comments came after Obama announced the nomination of Merrick Garland, a federal appeals judge in Washington, D.C. widely considered a centrist choice.

"The only position I've had is 'Hey, I'm concerned about the direction of the court,' and so if we come to a point where we've lost the election, and we can get a centrist like Garland in there as opposed to someone like Hillary Clinton might appoint then I'd go for it," Sen. Jeff Flake (R-Ariz.) added.

NPR Legal Affairs Correspondent Nina Totenberg reported that Republicans urged Obama to choose Garland, holding out the possibility of a lame duck confirmation.

But not every senator is on board with lame-duck consideration yet.

"I have no reason to think I would change my mind there, but I haven't even thought that far. Call me after the election," Sen. Lindsey Graham (R-S.C.) said.

"Oh God. I'm not even going to dignify that question or hypothesis with a response. the voters will decide that in November and we'll deal with what the voters do," Sen. Johnny Isakson (R-Ga.) added.

Sen. John Hoeven (R-N.D.) said his approach at this point is that "the people should have a voice" and it's unlikely "you're gonna see too much change on how Republicans or Democrats approach this issue."

Sen. Pat Toomey (R-Pa.) refused to even talk about it, saying, "We put out a statement this morning, I'd refer you to the statement." (His statement did not address the lame duck issue.)

Garland also received a bit of bad -- but not unexpected news -- from Senate Majority Leader Mitch McConnell (R-Ky.) Wednesday afternoon, when the two spoke by phone.

"The Leader reiterated his position that the American people will have a voice in this vacancy and that the Senate will appropriately revisit the matter when it considers the qualifications of the person the next president nominates. And since the Senate will not be acting on this nomination, he would not be holding a perfunctory meeting, but he wished Judge Garland well," McConnell spokesman Don Stewart said in a statement.

Garland is known as a moderate and his nomination was a bit of a letdown to many in his base who wanted a strong progressive -- and ideally, someone who would add to the diversity of the court.

"It's deeply disappointing that President Obama failed to use this opportunity to add the voice of another progressive woman of color to the Supreme Court, and instead put forward a nominee seemingly designed to appease intransigent Republicans rather than inspire the grassroots he'll need to get that nominee through the Senate gauntlet," said Charles Chamberlain, executive director of Democracy for America.

“Judge Garland's background does not suggest he will be a progressive champion and he is not the justice a conservative Republican would have nominated, but it is Pres. Obama's Constitutional duty to nominate Supreme Court justices, and he is clearly qualified," CREDO Political Director Murshed Zaheed said in a statement.

President Barack Obama nominated Judge Merrick Garland for the Supreme Court Wednesday.
President Barack Obama nominated Judge Merrick Garland for the Supreme Court Wednesday.
Pablo Martinez Monsivais/Associated Press

Garland has actually earned strong support from Republicans in the past -- including Hatch himself.

Last week, Hatch basically dared Obama to nominate Garland, whom the Senate confirmed to the D.C. Circuit in 1997 on a bipartisan 76-23 vote.

"The President told me several times he’s going to name a moderate [to fill the court vacancy], but I don’t believe him," Hatch told Newsmax. "[Obama] could easily name Merrick Garland, who is a fine man."

And name him he did. With the pick, Obama chose a man Hatch once called "a consensus nominee" who "would comport himself on the bench with dignity and fairness."

Indeed, the Republican statements opposing Obama's nominee often didn't even mention Garland and certainly didn't go after his qualifications.

"This has never been about who the nominee is. It is about a basic principle," House Speaker Paul Ryan (R-Wis.) said.

In other words, if Democrats prevail in the November elections, Republicans may want to confirm Garland, recognizing that the next president may nominate someone with a far more progressive record.

And presumably, all the Republican senators who lose their reelection bids will sit out the vote, since the people will have spoken.

Michael McAuliff contributed reporting.

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