Gorsuch Nom is Proof: Time for a SCOTUS Grand Bargain.
Democrats are mad as hell, and they’re not going to take it anymore.
Confronted with near-daily reports of protests across the country, Democratic leadership and rank-and-file members appear newly emboldened to mightily resist and condemn Trump’s agenda in its myriad menacing forms — half-cocked Executive Orders, extremists nominees tapped to head powerful agencies, and authoritarian threats to career civil servants, businesses, and the media.
So dramatic has been the turn from stunned immobility in the late panicked hours of November 8th and 9th, to a five-million-strong global protest, many have drawn parallels to the explosive emergence of the TEA Party in the early-2010s. While the speed with which anti-Trump protests have developed is similar to the TEA Party’s disorientingly quick arrival, the similarities end there: importantly, the Women’s March that galvanized opposition and drew the world’s attention is much, much more popularly supported than the TEA Party was at its prime in April 2010. Democrats should hold on to that piece of good news — and leverage its political capital to continue to dismantle Trump’s agenda.
Examples of the newly amped Democrats are everywhere evident — just yesterday, not a single Democrat supported Senator Jeff Sessions in his attorney general confirmation hearing. The know-nothing that is Betsy DeVos, her nomination is floundering, too, and may need to be saved by fellow reactionary VP Mike Pence and Senator Session before he swears-in as Attorney General. The open revolts among Democratic lawmakers are — for the frustrated Democratic base — welcome developments. It is against this background that Judge Neil Gorsuch’s nomination arrives. While many avenues of obstruction are being fruitfully pursued by Senator Chuck Schumer and others, Judge Gorsuch’s nomination to become the next Associate Justice of the Supreme Court is a critical battle.
If played deftly, Democrats can win a major victory for their energized supporters and SCOTUS watchers — whether or not Gorsuch ultimately winds up on the court. A strategic reframing requires acknowledging, too, this fact: if Gorsuch does attain the necessary number of nods, ultimately, his record suggests that he will substitute his own extremely conservative ideology and witticisms for the soft-brained Originalism Scalia would have penned anyway. So, properly understood, Gorsuch’s ascent to the court would be wrong — lawyers might call it reaping a benefit from a stolen good — but his tenure would not alter the court’s ideological balance. Democrats should embrace this posture because it is the most clarifying from which to plot advancements. If Gorsuch’s placement to the court is (1) unwelcomed, (2) not fatal, and (3) likely to occur, Democrats have a unique incentive to flip the stale nomination and confirmation script entirely. Practically speaking: It’s time for Sen. Schumer and other Democrats to seek a SCOTUS Grand Bargain.
Over the next several weeks, each party’s leadership and other interested senators could do a good deal toward building national unity, as well as defusing the volatility and politicization of the Supreme Court. Accepting as true (dubious, I know, but there’s a point here) Senator McConnell’s claim that he’d prefer to avoid using the Nuclear Option, Senator Schumer and other Democratic leaders should — very loudly, and very publicly — challenge Senator McConnell to join them for a bridge-building conference.
The conference’s goal would be important to settle the current impasse, as well as to fix some obvious deficiencies with our SCOTUS nomination process. Leadership from both parties would develop a list of five or fewer SCOTUS nominees who — mutually acceptable to both Republicans and Democrats — will garner 60 votes. Truly new ground could be broken. Most Americans fail to recognize that the early court and even its modern incarnations were characterized by a diversity of professional experiences: a healthy mix of former governors, major agency principals and cabinet members, state legislators, senators and US Attorneys General. The current court’s professional homogeneity is, historically speaking, an aberration.
Consider our current court nomination process and talent pipeline. Presidents are encouraged to nominate a candidate that has above all else two qualities: (1) a path toward confirmation and (2) youth. This is hardwired, of course, when we reflect that Justice Anthony Kennedy, the court’s longest-serving current member, has issued opinions for nearly 29 years. Neither Republican nor Democratic presidents are at all incentivized to nominate a candidate whose career deviates significantly from careers of successful nominees. Can it be reasonable to argue that our system is the best when the “ideal” SCOTUS nominee would be a 40 year old appellate court judge and graduate of either Harvard, Yale, Columbia, or Oxford — and preferably all four?
Second, and most importantly, Senator Schumer and the Democrats and Republican leadership should do away with Supreme Court Justices’ lifetime tenure. Purists will howl. Ignore them. Already, Mitch McConnell has functionally, and singlehandedly, amended the US Constitution, adding provisions that prohibit any Democratic president from a SCOTUS nomination (for there’s really no reason to disbelieve his threat to block all SCOTUS nominees when Hillary Clinton was favored to win).
During our republic’s earliest years, it is clear that lifetime tenure during good behavior was instituted with the intention to depoliticize the judiciary — our weakest branch of government. But it is no longer credible to contend that lifetime tenure encourages cooler passions, or insulates the court from unseemly politics in the selection, nomination, or confirmation of justices. In fact, doesn’t Justice Scalia’s death, McConnell’s unconstitutional and dishonest SCOTUS nomination theft, and the year-long absence of a full retinue of justices persuade that arbitrary shifts in membership damages and politicizes the court, instead of the opposite?
Among a significant number of other advanced countries with even remotely similarly functioning judicial systems, the U.S. is singular in enabling its highest judges to issue society-shifting opinions until their deaths. Is it in fact true that United States high court nominations and confirmations are uniquely susceptible to corruption or bad outcomes, and therefore require justices’ lifetime tenure?
The table below summarizes important data points for 9 countries’ highest court jurists, including the forum’s number of jurists, and the tenure or term the jurists serve.
Consider English-language countries, or non-English-speaking countries, or countries whose societies and judicial structures are not significantly dissimilar from our own: Canada, the United Kingdom, Australia, India, Japan, Germany, and France. Each country has some statutory limit on a jurists’ tenure or a specific number of years per term. None have duplicated the US’s practice of lifetime tenure.
Given the unprecedented norms-breach McConnell and Republicans engineered concerning Judge Merrick Garland’s nomination, Democrats cannot reasonably return to a business-as-usual nomination process. David Leonhardt and Jonathan Chait, along with quite a few writers recently, have opined on the predicament Democrats face under a Nuclear Option threat. Chait argues:
“There is no “leverage” gained by a weapon one’s opponent can disarm at will. The Supreme Court filibuster is like a pair of handcuffs in which the handcuffed person is holding the key,” and “Democrats have an extremely simple choice: They can make McConnell abolish the filibuster, or wait for the day when McConnell attacks them for doing it. It is McConnell, with his extraordinary blockade tactic, who has functionally changed the rules of the game.”
“But the only reason [Democrats] should vote for Gorsuch is if they decide it’s in their own political interest to do so. They may decide, for example, that any filibuster would be doomed to fail now — but might succeed if another justice leaves the court during Trump’s presidency. Or they may decide that an all-out fight would encourage Kennedy to retire, as the longtime Democrat Ronald Klain has warned. Either way, such tactical considerations are the ones that should guide Democrats.
Finally, the Democratic Party should begin planning its long-term strategy for the court, and that strategy needs to revolve around last year’s events. One option, for example, would be a plan first to deprive a Republican president of one nominee in coming years and second to offer a truce with Republicans.”
Both of these articles and others get to the heart of the matter. The Nuclear Option is a threat, but not so powerful a threat that its deployment should discourage Democrats from protesting the illegitimacy of the Gorsuch nomination process. What most commentators have failed to offer, but Leonhardt nears, is the impasse-breaking “truce” that should be offered to Republicans. A SCOTUS Grand Bargain may be just the type of creative compromise the current political climate calls for.
The exact number of years for justices’ prescribed tenure in a SCOTUS Grand Bargain? That specific point could be settled in the negotiations. Any number of factors could contribute to determining a more optimal, less contentious calendar for nominations: a maximum term of 18 years, for example, to protect against the volatility of presidential campaign cycles; a mandatory retirement at the age of 70 with provisions made for currently-serving justices, if their tenure is to be disturbed at all; and more intentional selection of nominees whose rich careers developed elsewhere than the circuit and appellate courts. In fact, it is in the Democrats best interest (and, truly, the whole country’s) to dive deep into what could truly free the nomination process from acrimony and gridlock. There is truly no rush in reforming a clearly broken and hugely important institutional process.
Last year, before Scalia’s body was barely cold, Mitch McConnell was (obnoxious) correct when he declared that the American people should determine who picks the next SCOTUS justice. Nearly three million more people chose to give someone other than Donal Trump that awesome responsibility.
Democrats are impassioned in the face of a president and administration that is seen as illegitimate. The administration has clearly misjudged its mandate, and the snap-protests of thousands is a demonstration of the depth of dissatisfaction. By all means, the Democrats should leverage the shame that is Judge Neil Gorsuch’s nomination to protest and respond to their constituency. But it is also true that Democrats’ faith in the ability of government to offer and support solutions to intractable concerns endures. A SCOTUS Grand Bargain might satisfy liberal and progressive activists, serve Democrats’ longer-term political aims, and provide some frame through which Americans can begin to imagine a less volatile process for our highest, most consequential court. That might be a win for both parties.