With all due respect to Yogi Berra, I’m going to talk about one of the first major decisions that President Clinton will have to make. (I say “have to make” because I doubt that the Senate will confirm Judge Garland in the lame-duck session. If they do, though, then never mind.)
One factor is whether Republicans or Democrats control the Senate next year. If the GOP retains control, then the argument for nominating Garland again gets stronger, as he is easily confirmable in a non-election year. If Democrats win the Senate, though, then the choice is more difficult. The President could nominate a younger and more liberal judge, or perhaps go for younger and more diverse in some sense. Why stick with Garland?
I suppose one answer is that Judge Garland is being treated badly and not nominating him next year would be, well, treating him even worse. Nevertheless, there is no vested right in a nomination of this sort from President to President (even of the same party). There is also the thought that even with a Democratic Senate the President may not want her first Supreme Court nomination to cause a fight. She is almost certain (you would think) to get at least one more vacancy, and maybe that is the time for a different pick.
A contrary case could be made, though, that by making that different pick now the President would discourage Senators from repeating the Garland precedent. Picking Garland again basically says to the Senate that there is no real cost to imposing a presidential election year blockade. If someone else gets picked who is worse from the Senate’s point of view, future Senators might say “See, that strategy backfired. Don’t do that again.”
But is this true? By the time another Justice dies in a presidential year when the Senate and White House are controlled by different parties, we might all be dead. Will anyone really care about the Garland precedent except for some historians? Seems doubtful.
Anyway, let’s revisit this after Election Day and see where the Senate stands.