President Obama’s decision to nominate Merrick Garland to the Supreme Court will make things more than a little awkward for a number of Senate Republicans who have vowed they won’t even consider the nomination. Blindly denying a vote to Garland, by pretty much all accounts a respected and relatively moderate judge, could hurt those senators who are up for re-election in purple or blue states, like Pennsylvania's Pat Toomey and New Hampshire's Kelly Ayotte. More immediately, though, Obama’s choice will leave more than a half-dozen senators who voted to confirm Garland to his current position scrambling to justify their newfound opposition to him.
Exhibit A: Sen. Orrin Hatch, a senior member of the Judiciary Committee, the panel that would be responsible for holding confirmation hearings on Garland—that is, if Republican leadership had not already ruled those out. Hatch is one of seven Republicans still in the Senate who voted to confirm Garland back in 1997 to the U.S. Court of Appeals for the District of Columbia Circuit. Here is Hatch touting Garland’s qualifications on the Senate floor two decades ago:
At the time, the Utah senator also called Garland “not only a fine nominee, but as good as Republicans can expect from [the Bill Clinton] administration.” In 2010, when Garland’s name was among those considered for the open Supreme Court slot that eventually went to Elena Kagan, Hatch said there was “no question” Garland could be confirmed if nominated. Flash forward to this past Friday, and Hatch was saying the same thing. “Obama could easily name Merrick Garland, who is a fine man,” he told the conservative website Newsmax on Friday while discussing the president’s impending announcement. Hatch then added: “He probably won’t do that because this appointment is about the election. So I’m pretty sure he’ll name someone the [liberal Democratic base] wants."
And how did Hatch react to news of Garland’s impending nomination on Wednesday morning? "The right course of action is to wait until the next year's election to consider a nominee to fill Justice Scalia's seat,” the Utah senator told CBS News. Ah yes, of course.
Hatch isn’t alone. Republicans John McCain, Arizona; Susan Collins, Maine; Pat Roberts, Kansas; James Inhofe, Oklahoma; Dan Coats, Indiana; and Thad Cochran, Mississippi, also voted to confirm Garland in 1997. Many of those senators haven’t weighed in yet, but the early returns don’t look promising for Garland:
Why did you vote for Garland in 1997? "I supported him," Pat Roberts said to me. Will you support him now? "It's not about the person."— Manu Raju (@mkraju) March 16, 2016
Even many of the Republicans who voted against Garland at the time said it had nothing to do with his qualifications, but instead were driven by the Republican belief that the D.C. appeals court has too many seats. Here’s what then-and-current Judiciary Committee Chairman Chuck Grassley said at the time: “I have nothing against the nominee. Mr. Garland seems to be well qualified and would probably make a good judge—in some other court.” That other court is apparently not the Supreme. “A lifetime appointment that could dramatically impact individual freedoms and change the direction of the court for at least a generation is too important to get bogged down in politics,” Grassley said in a statement today. “The American people shouldn’t be denied a voice.”
In addition to Grassley, there are four other Republicans still serving in the Senate who voted against Garland back in 1997: Majority Leader Mitch McConnell, Jeff Sessions of Alabama, Richard Shelby of Alabama, and Mike Enzi of Wyoming. While their opposition was also about the size of the D.C. court and not the nominee himself, GOP leadership is already busy rewriting history. "This is an easy one. Both our leader and judiciary chairman voted against him when he was confirmed before and it's a clear recognition by the White House that we mean what we say: There will be no confirmation," a senior GOP aide told Politico. "If they thought we were going to cave, they would have put up a much different candidate."