Never before has a Supreme Court nomination fight been won or lost in a photo op. But little about this Supreme Court nomination fight is ordinary.
And so the scene Tuesday of a Republican senator photographed alongside President Obama's court nominee, Judge Merrick Garland, was a sign to the White House of forward progress — another yard toward the goal line the administration sees as entirely within reach.
"We should be doing our job," Republican Sen. Mark Steven Kirk of Illinois told reporters crammed into his Senate office during the congressional recess. "We need … a rational, adult, open-minded consideration of the constitutional process."
Kirk became the first Republican senator to meet with Garland, the latest advance in the slow and deliberate battle of attrition that White House officials have embarked on in the Supreme Court confirmation fight. They aim to ultimately expose Republicans' refusal to even hold hearings for Garland as an untenable position in the eyes of the public, and argue that GOP lawmakers themselves are only magnifying the incremental steps in the confirmation process by ignoring or skipping them.
The fight to get Garland confirmed has shaped up to be as fierce as any in recent memory, pitting entrenched opponents in the White House and the Senate Republican majority against each other amid an atmosphere of deep-seated election-year partisanship. A 4-4 decision Tuesday by the remaining justices in a major labor rights case only further underscored the stakes at play.
Garland's meeting with Kirk was one of a handful of hopeful signs of late for those who expect the judge to win confirmation. Local newspapers documented the tough audiences faced at home Monday by Iowa Sen. Charles E. Grassley, chairman of the Judiciary Committee, who would preside over any confirmation proceedings this year.
Grassley, a six-term senator who is up for reelection in November, has been a focal point of efforts by Democrats and left-leaning groups to pressure Republicans into considering Garland. Obama's allies see consideration of Garland as a requirement of senators' constitutional obligation to "advise and consent" on such nominations.
Grassley has stood by the Republican argument that voters, rather than a term-limited president, should have a chance to help shape the balance of the court this election year. But the White House said it was "heartened" that Grassley said he was prepared to accept the traditional questionnaire that high court nominees routinely fill out — casting it as another gain, however minuscule, for Obama.
"We expect that, alongside this request, committee members will do their jobs by completing meetings with the nominee, [calling] a hearing, and giving Judge Garland the consideration he deserves," White House spokeswoman Brandi Hoffine said.
The administration sees other milestones ahead that could help sustain interest in the Supreme Court fight even amid competition for public attention from the presidential campaign and other major news.
Noting that the day after Democratic Sen. Bob Casey of Pennsylvania sat down with Garland last week, his Republican colleague, Patrick J. Toomey, announced he would do the same, aides say that eventually, more meetings — at least 16 Republicans have expressed openness to seeing Garland, they say — could lead to a hearing, and then a hearing to a vote.
"There's a well-defined process for considering Supreme Court nominees, and we're taking that process one step at a time," a White House official said. "Two weeks ago, Republicans were nearly universally refusing to meet with our nominee — that's not the case today."
But Republicans scoff at the administration's assessment of the state of play.
"Obviously that's their hope. As we've seen throughout the Obama administration, hope is not a plan," said Brian Rogers, executive director of the Republican opposition research firm America Rising Squared, which has been focused on the court battle and participated in a discussion with Republican leadership on the issue.
Rogers said that most Republicans, particularly conservatives, continue to support the leadership's strategy and that the White House is overstating dissent within Senate Republican ranks. For every Kirk who is at odds with the approach of Senate Majority Leader Mitch McConnell, there are dozens of senators who support it.
"McConnell has been as clear as day on this, that we are going to go ahead and wait and let the people decide," Rogers said. "And ultimately, it's leader McConnell and the leadership team that is going to make that call. And they've shown no signs of wavering."
Republicans largely view the White House's bid to confirm Garland as simply a proxy for a Democratic campaign to win back the Senate, one that was unlikely to succeed, said a senior Republican aide, who would not be named discussing the politics of the Supreme Court fight.
The aide noted that a coalition of Democratic outside groups seem to have limited their persuasion campaigns to Republican lawmakers who are in tough reelection fights, and that given the hyperpartisan climate, any swing voters that Republican senators might attract by supporting Obama's nominee would be more than offset by losing the votes of party loyalists, while Democratic voters would simply find another reason to oppose them.
"You name me one Democrat who's going to change their vote [in a Senate race] over having a hearing, and I'll buy you lunch," the aide said. "There's no upside."
A recent survey from the Pew Research Center found that 46% of respondents wanted the Senate to confirm Garland, while 30% did not and 24% had no opinion. While the percentage of Democrats who wanted him confirmed was greater than that of Republicans who did not, Republicans were more likely to say that the Supreme Court was an important issue to them than Democrats.
As for Obama, aides found cause Tuesday from the Supreme Court itself to reiterate their argument for considering Garland. Split decisions raise constitutional concerns that senators must consider in the court battle, said White House Press Secretary Josh Earnest.
And he employed a Republican to make his case.
In 1988, "President Reagan made a persuasive case that every day … that goes by without the Supreme Court being fully staffed was a problem for the country and one that the Congress had a constitutional responsibility to address," he said.
"We agree with that."