Home National Politics How an Honorable President-Elect Would Deal Now with the Supreme Court Vacancy

How an Honorable President-Elect Would Deal Now with the Supreme Court Vacancy


This piece is appearing this morning in a couple of the newspapers in my conservative congressional District (VA-06).


I know it’s not going to happen, because Donald Trump is not that sort of man. Indeed, in our polarized times, I don’t know how many people would be honorable enough to do what I propose.

Everyone assumes – probably rightly – that with Trump elected President and with the Senate under Republican control, he will nominate and the Senate will confirm some conservative (or even far right-wing) justice to the Supreme Court, thus breaking the present 4-4 tie on the Court between the reliably liberal and reliably conservative justices.

That will likely happen, but it would be wrong. The Republicans would be rewarding themselves with ill-gotten gains.

No doubt about it: the Republican decision to refuse to confirm any justice that President Obama might name was an entirely illegitimate power play. What they did is completely unprecedented in American history (as a study by legal scholars – who examined over 100 relevant comparable instances – determined).

The Constitution does not have language that expressly forbids what the Republicans did, but there’s a great deal more to the Constitution than what is explicit. For a member of Congress to honor his/her oath to “protect and defend the Constitution,” they have to honor also the clear intent of the Framers.

And no one could argue with a straight face that when the Framers of our Constitution wrote that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court,” they had in mind that “advise and consent” could legitimately be twisted into “block the president from playing his constitutionally designated role.”

So the power the Republicans will soon have to put their own justice on the Court, and regain the domination they lost – by the rules, fair and square – when one of their justices happened to die while Mr. Obama was President, is power that they stole. It was not rightfully theirs.

I doubt that Mr. Trump, for whom what is honorable seems never to have been a priority, will care about that theft. But I’m reading a biography of former Republican president Dwight Eisenhower these days, a man of real integrity. Allow me to fantasize how he’d act if he were in Trump’s position.

My guess is that he would consider nominating Merrick Garland, since Obama nominated him and there is no legitimate reason for him not to have been confirmed. But my guess is that he was enough of a politician to reject that idea, because it would alienate so many of his supporters and Republicans in Congress, for whom getting control of the Court – even by illegitimate means – has been a major desire.

He wouldn’t want to hand an important victory to the other side, deserved or not.

But neither would he think it right to seize the ill-gotten gains his Party took by theft. And so I imagine him coming up with a compromise, one that would restore some integrity to the American system of presidential nomination and Senate confirmation.

Instead of handing either side a victory in the battle over control of the Court, he would find the very best judge he could find who was both fair-minded and ideologically unpredictable.

Having allegiance only to what is fair and right, and having the ability to see things from a viewpoint that sometimes would be called “conservative” and sometimes “liberal,” this judge would be the deciding vote on those sorts of matters on which the Court has lately split 4-4. But which of the two sides in our excessively divided Court would prevail would depend on the merits of the case, as this fair-minded and non-ideological judge saw it.

Such an appointment might help to alleviate some of the corrosive polarization on the Court, and in our political system generally. And for the new President Trump, it would be an enormously appreciated gesture of healing – binding up the nation’s wounds – directed at that half of America that has been not just disappointed, but profoundly alarmed by his election. (And a new poll just found that 60% of Americans want Mr. Trump to compromise with Democrats on matters of major disagreement.)

The alternative — of completing the theft of the rightful power that the American people gave Barack Obama in 2012 – would not only further poison our politics. It would also damage our constitutional system that Republicans claim to care so much about. Who knows if the confirmation process — and thus the Supreme Court itself — would ever have integrity again?


Andy Schmookler — who was the Democratic nominee for Congress in Virginia’s 6th District in 2012 — is the author most recently of WHAT WE’RE UP AGAINST: The Destructive Force at Work in Our World– and How We Can Defeat It.


  • Ideologically unpredictable? Why not accept, as a matter of standard, jurists who uphold the Constitution? That’s the job description. Republicans and Democrats and Libertarians… essentially everyone… seem to have lost sight of this. If we appointed only strict constitutionalists, there would be no threat to liberals or conservatives from the highest court in the land.

    • What’s your definition of “strict constitutionalist?” Clearly, a TON of things have changed since the late 1700s….

  • Dave Webster

    It is clear why Shcmookler was never elected to Congress.

    • Yes, because that district was gerrymandered by Republicans into a deep-“red” one, safe for the incumbent’s protection (also a classic example of the incumbent choosing his voters, not the other way around).

    • Andy Schmookler

      I just want to point out how Dave Webster here illustrates one of the unappealing customs of the right-wing culture. Winning is treated as a sign of indisputable merit, while someone who loses is altogether discredited. (I wasn’t elected– a sure sign of my being defective.)

      This of course requires hypocrisy and inconsistency– two things the right-wingers are quite adept at — because they themselves often lose. But whereas THEIR victories are affirmations by the cosmos, the victories of their opponents are no such thing. Obama’s victory doesn’t make him a winner– instead, they focus on lies about his being illegitimate (born in Kenya) and intolerably extreme (floating Republican ideas like the framework for Obamacare and cap and trade).

      Their defeats in 2008 and 2012 mean nothing. Their victories in 2010 and 2014 and now– they mean everything.

      What this shows is that their cosmic vision has little to do with what is right or true, but everything to do with winning and losing. It is a vision in which power is THE value, and victory is all that is required to affirm one’s rightness.

      So we get put-downs like this one from Webster– who does not make even the slightest effort to make an argument. In the right-wing mentality– the fact that I lost to Goodlatte (in a 2:1 Republican district, by the way — is sufficient.

      And this remark would be sufficient for ANY piece I might post. Because it has not substance whatever, except for the exultation of a victor whose superiority to the “loser” is self-evident in this amoral universe.

      I’ve seen it so many times: when they win, they treat their victory

      • Well said. They have no argument, so they go for 7th-grade-schoolyard-style attacks. They also ignore the fact that Trump is going to lose the popular vote by 2 million or more, and all of a sudden are big fans of the electoral college, which Trump himself HATED in 2012 (but now loves, since it’s working to override the popular vote).