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).

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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.