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Merrick Garland Can Save The GOP From Itself

Donald Trump is dragging Republicans down. They need to do something dramatic to break with him. How about doing their jobs?

Given whom they’ve nominated, you'd think Republicans would be more panicked about their brand. With a week to go until the election, Donald Trump has alienated virtually an entire generation of young Americans, along with most women and voters of color. But the GOP had better realize, and quickly, that things can get even worse for them. In endorsing Trump, the party has forever bound itself to an openly bigoted, misogynist charlatan, and the hell he has raised will remain like a keloid on our politics.

If Republicans in Congress — who may not be in control for much longer, thanks to Trump — want to save their party, they should do something right now to signal a complete separation from the man they're trying to elect. A simple suggestion? They should announce their intention to take up a vote on Supreme Court nominee Merrick Garland.

Remember him? Lost in the grim circus of this election is the fact that Garland — President Obama's choice to replace the late Antonin Scalia, and a man with a substantial record as an attorney and jurist — continues to wait longer for a hearing than any other Supreme Court nominee in history. It's been well over 200 days; no other nominee in the last three decades waited longer than 99. According to the Constitution's Appointments Clause, the president has the right to fill an open Supreme Court seat with the "advice and consent of the Senate." But Senate Majority Leader Mitch McConnell has been explicit that he will not allow President Obama to fulfill that right, for no other reason than that he is President Obama. Immediately after Scalia's death in February, McConnell wrote in a statement, "The American people should have a voice in the selection of their next Supreme Court Justice," ignoring the fact that we had that voice when we elected Obama twice. "Therefore, this vacancy should not be filled until we have a new President."

That new president is, in all likelihood, going to be Hillary Clinton. Several Republicans made big shows of dropping their support for Trump after the release of the foul Access Hollywood tape and accusations of sexual misconduct that followed. Three disastrous debates didn't help matters, and considering current polls, Trump lacks a realistic path to win the White House next week. And Republicans know it; rather than continuing to hope for a Trump administration, some GOP insiders have already begun planning to sabotage Clinton's.

Last week, Senator Ted Cruz — who waited until late September to endorse Trump — suggested that the Republican block on Garland's nomination, or whomever a President Clinton would choose to nominate in his place, could last indefinitely. Arizona senator John McCain had said something similarly ridiculous the week before. On Monday, North Carolina senator Richard Burr vowed to never consider Garland and to keep a spot open on the Supreme Court for four years. The Heritage Foundation, a conservative think tank, is raising funds to "give Senators the procedural tools to block any liberal nominee."

Cruz, at least, has tried to couch his bullshit in history. "There is certainly long historical precedent for a Supreme Court with fewer justices," Cruz said on Wednesday. He was technically correct; as Justice Stephen Breyer recently told MSNBC, the Supreme Court has had anywhere between 6 and 10 members at various times throughout American history. Right now, there are only eight. At least one disagrees with Breyer.

"It’s much more difficult for us to do our job if we are not what we’re intended to be — a court of nine," Sonia Sotomayor told a law school audience in Minnesota on October 17. Having nine members, she said, ensures that "people across the country are being treated equally" and that the court can deliver a definitive result on cases, rather than splitting 4-4 along ideological lines and then having to fall back on the decisions of lower courts. What McCain, Burr, and Cruz are all proposing could lead to the Supreme Court quite literally dying out, mutilating the judicial branch of federal government.

Voters appear to be grasping the urgency. The Supreme Court typically hasn't been a core election issue, unlike the economy, national security, and health care. But it's on a lot of people's minds in 2016: Sixty-five percent of those polled by Pew Research Center over the summer said Supreme Court appointments are "very important" to them, and it's easy to see why. One justice died in February, and three others are near or past the average retirement age. There will likely be several vacancies opening up over the next four years, and given how those new justices will sway the court left or right for generations to come (these are lifetime appointments, barring retirement or impeachment), it might make more sense for the Republican senators to consider Garland, the moderately liberal devil they know.

At least one Republican senator, Jeff Flake of Arizona, agrees. "If Hillary Clinton is president-elect then we should move forward with hearings in the lame duck," he said in October. "That's what I'm encouraging my colleagues to do."

Flake understands that the government has to function, even when your preferred party doesn't win. And while both sides of the aisle may contribute to Washington gridlock, Republicans are the ones who talk about drowning government in bathtubs and actively stalling public works. Trump has made things even worse; 40 percent of respondents in a recent online poll stated that they've "lost faith in American democracy," including elections. It's hard to blame them when our representatives have made so clear their unwillingness to actually do their jobs. Giving Garland a fair hearing could at least help undo the party's image as federal constipators. What better way to show that your party is serious about government than having it govern?

I understand why, for conservatives, taking a vote on an Obama Supreme Court nominee might sound more like capitulation than like brand rehabilitation. But outside of paying taxes or shouting "Black Lives Matter," I'm not sure how else they expect to set themselves apart from Trump, who keeps struggling to act like he's taking any of this seriously. Responding to a question about the Supreme Court at the third presidential debate, the Republican nominee just whined about something mean Ruth Bader Ginsburg had said. The 83-year-old Ginsburg had already apologized for calling Trump a "faker," an insult perhaps not befitting a Supreme Court justice, but one that would barely merit a turn of the head if yelled out on a playground. It was the lightest of cuts, and it still hurt Trump deeply.

Trump has also repeatedly shown how little regard he has for jurisprudence or due process, whether he's talking about waterboarding, his businesses, or Clinton's emails. He keeps proving himself to be someone whom we shouldn't trust to fill out a grocery list, let alone Supreme Court vacancies. Republican senators, some of whom appear not to care if the Court survives, should rely on their instinct for self-preservation. They need to do more than send a message to the nominee that they are cutting him loose. By taking up Garland's nomination, they can at least show that they still have an interest in actual governance. It's been a while since that happened.