Today, Justice Neil Gorsuch officially began his tenure as Associate Justice of the Supreme Court, ending the 14-month long war of attrition over the late Antonin Scalia’s seat on the Supreme Court. This war of attrition has brought to light many disturbing institutional trends in both the Senate and the Supreme Court. For the Senate, this battle ended with the Republicans invoking the “nuclear option” on Supreme Court picks, cementing the move towards a strictly majoritarian Senate that seemed all, but inevitable, after Harry Reid and the Senate Democrats invoked it on presidential appointments in 2013. This means that, roughly 100 years after the 17th Amendment made senators directly elected, the transformation of the Senate into a smaller version of the House is essentially complete.
As for the Supreme Court, the war over a seat that merely reaffirms the existing status quo indicates that Court seats are far too valuable, nowadays. The Founders envisioned the Court as being the weakest of the three branches, lacking the power of the purse or sword to enforce its will. The early years of the republic reflect this with the frequent turnover and voluntarily-short tenures of many judges (as well as the lack of an official building until 1931!). Since 1954, however, the Court and larger judicial system have been increasingly-viewed as a substitute for the legislative process. Instead of merely interpreting and determining the Constitutionality of laws, the courts are now often viewed as the most expedient vessel for social change. The best example of this is the judiciary’s lead on the issue of same-sex marriage. Many of the earliest states to allow for same-sex marriage, such as Iowa, made these changes through the courts, rather than through the normal channels of lawmaking. This culminated in Obergefell vs. Hodges, where the Supreme Court declared same-sex marriage a right for all Americans. Whether they were right or wrong to do so is immaterial; the point is that this particular issue reflects the increasing power of the judiciary and the monumental importance of every seat on the Supreme Court.
And so, every vacant Supreme Court seat now is a battle of wills. We have seen this develop over the last 30 years, beginning with Ted Kennedy’s hyperbolic rant on the Senate floor that sank the nomination of Robert Bork. The vicious battles over William Rehnquist (for Chief Justice), Clarence Thomas, Samuel Alito, Sonia Sotomayor, Merrick Garland, and now Neil Gorsuch further attest to this. In my view, these confirmation gauntlets damage the institutional prestige of both the Supreme Court and the Senate. To be clear, I am not against thoroughly vetting potential candidates to the Supreme Court. I am, however, against smear campaigns and voting against eminently qualified justices merely out of partisanship. The Supreme Court was never designed to be a partisan body, nor was the Senate designed to be the forum for gutter warfare of the sort we now see in confirmation hearings.
Ergo, I have a proposal for the supposed “Master Dealmaker” now living in the White House, should Anthony Kennedy retire this summer. It is inspired by the West Wing episode, “The Supremes,” but it might just be the kind of deal that could start to rebuild the trust of Americans in our institutions. My proposal is this: convince both Anthony Kennedy and Ruth Bader Ginsburg to retire at the same time. Trump and the Republicans pick Kennedy’s replacement and the Senate Democrats pick Ginsburg’s replacement. In return, both parties agree to swift, collegial, and fair confirmation hearings and floor votes that more closely resemble the 98-0 vote Scalia earned and the 96-3 vote Ginsburg earned than the 54-45 (mostly) party-line vote we witnessed with Neil Gorsuch.
This deal would, I believe, benefit both parties. For conservatives, this would solidify a 5-4 majority that pulls the Court slightly to the right, especially on volatile issues, such as Roe v. Wade. Instead of Kennedy being the “swing vote”, Chief Justice Roberts would serve in that role, ensuring more conservative outcomes. Of the two seats, Kennedy’s is, obviously, the more consequential seat and thus will be the more bitterly contested when it opens up. Although Mitch McConnell has certainly proven his willingness to fight in the trenches as long as it takes in order to save a Court seat, the battle over Scalia’s seat will be nothing next to the battle over Kennedy’s seat. It will be a winnable battle for the GOP, but why not make it easier? Why not spare the country from a fight that borders on gladiatorial levels over one seat? Why not find a way to make everyone happy, rather than perpetually angry? Americans are rabidly divided right now, why not try to unite them?
Since the Republicans have all the power right now, this deal would be extraordinarily generous to the Democratic minority. In the West Wing, the deal reflected the Republican strength in the Senate. Now that the nuclear option has been invoked and a simple majority can confirm a judge without a problem, the ability to pick Ginsburg’s replacement should easily be worth the cost to the Democrats of holding back their attack dogs against any Republican pick. For liberals, who currently have no power in the Senate, other than to shout and protest, they could ensure that their beloved Ginsburg would have a successor worthy of her legacy. Perhaps more importantly, it would ensure that the majority is only 5-4, rather than a more insurmountable supermajority (and Roberts has shown a willingness to side with the liberal bloc when he feels the need to preserve the Court’s prestige, as he did with Sebelius in 2012). Given the unlikeliness that the GOP will lose the Senate before 2020, taking this deal would be much safer than betting on Ginsburg’s continued physical ability to serve on the Court. The choice facing the Democrats would be this: accept the deal or quite possibly watch the Republicans replace Ginsburg with another Originalist.
In sum, I believe this deal would be beneficial to the American people. All signs indicate that Kennedy is willing to retire, now that a Republican (with whom he has some personal connections) is in the Oval Office. If that happens, the Court’s conservative majority will be solidified, no matter what the Democrats do. The question is whether or not this change can happen without a merciless war in the trenches against another eminently qualified jurist. The partisan filibuster of Neil Gorsuch shows that we can expect that Kennedy’s replacement will have to endure Armageddon in order to sit on the bench. This proposed deal could spare us from two rounds of such poisonous theatrics that reflect poorly on both the Senate and the Supreme Court. Moreover, it could show the American public that the Senate is still capable of forging Grand Bargains and reducing the hyperpolarization of the current era. In other words, it would show that compromise and mutually-beneficial solutions are not relics of bygone eras; we are still capable of reaching accords. And finally, it can lay a foundation for similar bargains in the future that help to keep the Court relatively balanced, as it should be.
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