Since President Obama’s nomination of Merrick Garland for the Supreme Court on March 16th to fill the seat left by the sudden death of Antonin Scalia, Republican legislators have summarily refused to consider the nominee. Unprecedentedly, they have said that the current president should not fill the Supreme Court vacancy, but that the decision should instead fall to the next president. To date, President Obama has been patient, taking little action to pressure the Republican-controlled Senate to consider his nominee. Obama must now change his stance, however, if he is to persuade Republicans to fulfill their constitutional duty to consider his nominee for the post.
One potential solution is for the president to offer the Merrick Garland nomination in the form of a “forward contract” to Senate Republicans. In finance, forward contracts are agreements between two parties to either buy or sell an underlying asset at a particular price on a specific future date. Translating this into Garland’s nomination, a “Supreme Court-linked forward contract” would involve Obama setting an expiration date on the nomination in order to maximize pressure on Republicans to consider, if not confirm, Garland as soon as possible. Unlike a regular forward contract, this one need not be in writing, but simply verbalized.
Garland is a centrist and Republicans could hope for no better from a Democratic president. Instead, they’re praying for a Republican win in November, at which point the Garland nomination would be dead in the water. In the event that a Democrat wins the general election, the Republicans will want to confirm the Garland nomination, knowing that the next president would nominate someone more liberal. The Clinton campaign has already suggested as much, highlighting Garland’s intellect and the bipartisan support he has received in the past, but stopping short of publicly stating what might happen if the Senate refused to vote on his appointment. For context, the Senate has never taken longer than 125 days to vote on a Supreme Court nominee.
The key feature of such a forward contract is the expiration date of the Garland nomination, which increases the likelihood of the nomination being confirmed as it substantially raises the stakes for Republicans of not confirming him. The implicit alternative – after the expiration date has passed – is the replacement of Garland as a nominee with a more liberal candidate.
No matter what, the expiration date of a “Supreme Court-linked forward contract” must be set before the general election. If it were set for after the election, the contract would be irrelevant as the critical information informing the Republican decision would already be known, making the whole exercise moot.
This still leaves several timing options. One possibility is to set the contract expiration date for the day of, or the day before, the election. By choosing November 1st or 2nd, the next president would still be unknown and Republicans might still be hoping for victory. It would also give Obama and Senate Democrats the most time to lobby their Republican counterparts in favor of the Garland nomination. If polls suggested a lopsided election victory for Democrats, however, Obama would be leaving “liberal value” on the table, which Republicans would be glad to cash in. Alternatively, if polls predicted an overwhelming Republican victory, the forward contract would be worthless as Republicans would rightly bet on choosing their own nominee with a new administration. All of this points to the importance, under this timing option, of polls in the days before the election, their accuracy, and how close they predict the election to be.
To strategically maneuver ahead of the information release from the final pre-election polls, Obama could set a substantially earlier expiration date. A suitable date might be just before or just after the Republican convention in August. If set immediately after the convention, Obama would be capitalizing on the uncertainty of whether the eventual Republican nominee would actually be able to defeat the Democratic one. At the time of the convention, the Republican nominee may not yet have focused his attention on raising his stock versus the Democratic nominee, likely to be Hillary Clinton. If the expiration date were to be set just before the convention, Obama would be pushing Republicans on the question of who their nominee will actually be. The Republican nominee may or may not be pre-determined by the time the convention starts, depending on whether Trump continues his success or whether Republican powerbrokers are willing to stage an anti-Trump coup.
The third timing option is to set the expiration date for either just before or just after the final primary that Trump would need to secure the necessary number of delegates to win the Republican nomination outright – sometime in May. This option would force Republicans to link their confirmation of Garland to a bet on the probability that Trump might have an overwhelming and fully legitimate claim on the Republican nomination. Republicans would have to make a bet on whether Trump could lock up the nomination, his probability of winning the general election, and, if he were to win, whom he would actually nominate. If certain Republican suspicions are correct that Trump is actually secretly a liberal, he may in fact nominate a liberal judge.
Instead of offering a single forward contract on the Supreme Court nomination, it could be even more powerful to offer several contracts simultaneously. Each one would have a later expiration date, but would also come with a more liberal judicial nominee. In effect, Obama would put the Republicans in a vise that would tighten – and become more painful – with time. The longer the Republicans waited to confirm Garland, the less palatable the new nominee would be to them. While this may contribute to an otherwise unwanted politicization of the Supreme Court, it may be the only method to incentivize Republicans to come back to the negotiating table and actually scrutinize the nomination.
To further enhance the multi-candidate option, Obama could collaborate with Clinton and Sanders, encouraging both to publicly announce the set of candidates they would consider nominating were they to win the White House. The key here is that all such shortlisted candidates would be even more liberal than the most liberal nominee Obama would propose in his final forward contract set to expire the day before the election. By announcing their own shortlists, Clinton and Sanders would be placing further pressure on Republicans to accept the best deal that they could possibly obtain: Merrick Garland, now.
Republicans should view Obama’s nomination of Garland to the Supreme Court as an offer of peace. Garland’s nomination already constitutes a large concession given his relative centrism as well as his age. If Republicans don’t accept the peace offer soon, President Obama should up the ante.
Benjamin Luxenberg is a joint MBA and MPP student at Harvard Business School and the Harvard Kennedy School of Government.