Here’s a hypothetical scenario that I think could help return the process of confirming SCOTUS justices back to some semblance of normal. I don’t think the premises are too outrageous, so please don’t fight those. The thread is to discuss my proposed solution should these initial scenarios come to pass.
Kavanaugh is confirmed.
Democrats take the senate this fall.
For whatever reason other than impeachment and removal, either Thomas, Alito, or Kavanaugh have to leave the court after this fall’s election but before the 2020 election.
Those are the premises of the hypothetical. I realize that the 2nd and 3rd are somewhat unlikely, but they aren’t totally unrealistic. Here’s my solution for this scenario. The Democrats pledge that they will vote on whoever Trump nominates, assuming they have the appropriate qualifications, and not consider the politics of the nominee. The Democrats would agree to do the same for any future vacancies as well. In exchange Gorsuch will resign and Trump would nominate Garland to his seat. If the above three happened, would this response have at least some chance of happening, or is it just a pipe dream to help restore some civility to the process of naming a new SCOTUS justice?
It’s a pipe dream that the Democrats could ever reasonably trust the Republicans to abide by such an agreement.
The only thing I can think of, other than a Constitutional amendment (nigh impossible without massive partisan changes) creating terms for SCOTUS, is for Presidential candidates to agree that they promise any SCOTUS nominees will be at least 70 years old. That would make SCOTUS nominations much less fraught, since they would only alter the court for a decade or so on average. If the next Presidential candidates made this a political precedent, and the public demanded that future candidates agree to abide by this precedent, then this might have a chance of toning down the extreme partisanship and bomb throwing for SCOTUS nominations.
I think any kind of political bargaining/gamesmanship which includes a sitting Justice agreeing to resign would do far more damage to the Court than the current nomination process currently does. The entire point of lifetime appointments is so the Justices are above politics once they’re on the bench. Everyone freely & openly admitting that isn’t even close to true would destroy whatever impartiality the Court has left.
Gorsuch is already a sitting Justice. Barring some sort of criminal activity that would prompt impeachment, or a constitutional amendment, he’s not going away, and the sort of horsetrading being proposed has about zero chance of getting all parties to agree on it, nor do I think it’s particularly healthy for the court.
Speaking as someone that at least perceives myself as a liberal, this constant obsession with trying to give the “stolen” seat back to Garland is starting to get about as tiring as “But her emails”. Let it go.
“Has to leave” didn’t imply “die” to me. But if you want to include that, then “In exchange Gorsuch will resign” is totally unrealistic. The unrealistic part continues with the Democrats and Republicans acting on some unenforceable agreement, especially one which includes the Democrats agreeing to vote for “anyone” that Trump nominates, regardless of politics. Asking politicians to completely ignore politics for any length of time is totally unrealistic.
This has the prisoner’s dilemma conundrum of disarmament. Side A and Side B may both agree that “It’s best for everyone involved for us to put our guns down.” But the first side to do so will get shot. What if, say, Gorsuch is replaced by Garland but the D’s do still stall a future Trump appointee? Or the D’s do approve a Trump appointee but Gorsuch refuses to leave?
Not to mention that the Republican base would go absolutely apeshit over this agreement. Asking Trump to throw away his base is, again, totally unrealistic.
The right-wingers would need TWO new court vacancies AND to trust the Democrats AND for Gorsuch to happily give up his sinecure just to break even.
The chance of this happening? Zero. With a Z. (0.000% if you need a more precise answer.)
If Trump’s nominees aren’t liberal enough I think the Democrats say the McConnell rule means that lame-ducks aren’t entitled to SCOTUS appointments and we must wait for the voters to decide in 2020.
What the McConnell rule really means is that no Supreme Court nominees will ever be confirmed again where the president and Senate are controlled by different parties.
All that would mean is that as long as there are 40+ Republicans, no Democrat could ever pick a Supreme Court justice again. People don’t understand the thug mentality of Republicans.
It might barely be possible to make a deal with Senate Republicans.
It is not possible to make a deal with Donald Trump. He can agree to something and the very same evening be tweeting the exact opposite. It can’t be done.
Does this mean that the Dems agree to hold a vote? Not necessarily to confirm, just to hold a vote.
This doesn’t sound like a good deal to me. For a number of reasons -[ul][li]The GOP has no power to bind Gorsuch, or any other justice, and there is no reason for Gorsuch to agree and no way to force him.[/ul][/li][ul][li]There is no difference that I can see between not holding hearings, and holding hearings and voting to withhold consent. So the GOP gains, essentially, nothing. They lose Gorsuch, with no assurance that they will keep the seat vacated by Thomas or Alito or Kavanaugh. So they lose a seat, and in return they lose another seat.[/ul]Sorry, no thank you.[/li]
Regards,
Shodan
If Republicans are ecsatic about the way it is right now, which they are, because they are ratcheting in gains that were very unlikely anyway, and will never be repeated, there is no possible way they would make an agreement to “return to” any process because of civics.
They have a bad look politically, which may prove to be fatal. No political deal is in their favor, except to ratchet in the staus quo for as long as possible and accrue gains in arenas where they can: the justice dept, deregulation, tax cuts, and dog whistles.
The Republicans just won the lottery three times in a row basically. You want them to come back to the table for double or nothing “for the good of the country”. I am betting they won’t do this.
You guys should give up on the Garland pipe dream, at least until your side controls the Presidency and the Senate, and a SCOTUS vacancy occurs. THEN you can nominate Garland if you want (I suspect your side does not really want him on the SCOTUS that badly).