Without issuing an opinion — no ruling on school desegregation, no decision on abortion rights — the Supreme Court is at the center of perhaps its gravest Constitutional crisis in eight decades. The stakes could not be higher, the implications could not be greater, the consequences could not be more far-reaching.
In the span of a month the country has witnessed the High Court nomination of a supremely competent jurist, Merrick B. Garland, be ignored by a stubborn Republican-controlled Senate; the prospect that another supremely competent jurist, Neil Gorsuch, might be blocked by a recalcitrant Democratic minority; and, just the other day, a blistering critique of judges by the president followed by Gorsuch’s comment that the Trump remarks were ”disheartening.”
This whole contretemps is a substantial departure from American history. A Ronald Reagan appointee, Anthony Kennedy, won confirmation by a 97-0 vote. Two of Republican George H. W. Bush’s nominees were confirmed by a Democratic Senate, once by a 90-9 vote (David H. Souter). As recently as 2009, 9 Republicans voted to confirm the choice of a Democratic president (Sonia Sotomayor). But last year Republicans refused even to take up the nomination of Garland, and now Democrats are threatening to return the favor and stall if not defeat the nomination of Gorsuch.
There is no premium in asking who started this, or for re-fighting whether a president toward the end of his term should make a court nomination. At the heart of this is how to interpret Article II, Section 2, of the Constitution, which says the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint” justices. Does that mean that the Senate has a co-role in the appointment of these jurists? Or does it specifically grant the predominant responsibility with the president, putting the Senate in a minor role? It depends on whom you ask, and what his or her interests are.
Many Democrats, including Senate minority leader Charles E. Schumer of New York, are determined to fight the Gorsuch nomination, their ardor heightened after Trump pilloried Judge James Robart, a George W. Bush appointee who was unanimously confirmed by the Senate, as a “so-called judge.’’ Schumer said the president’s attack “raises the bar even higher for Judge Gorsuch’s nomination.’’
So is there a way out of this mess? A start would be presidential initiative to reach out to leaders of the rival political party, to seek their views on Supreme Court appointments, and to get a sense of who is confirmable. President Bill Clinton did some of that, and it helped him win large margins for Ruth Bader Ginsburg (96-3) and Stephen Breyer (87-9), both of whom had strong ideological tints.
Or my proposal: President Trump, facing a divided country with high emotions, seeks to mend fences and salve past injuries by offering a deal to both parties. He asks Democrats to join Republicans in giving swift and perhaps even unanimous approval to his nomination of Gorsuch. He accompanies that with a vow to fill the next vacancy — whether it is produced by the death or resignation of a Republican-appointed justice or one appointed by a Democrat, a gamble for everyone — with Garland, vowing to ask Republicans to support that selection.
About 1 in 5 Americans who voted in last November’s election said that Supreme Court appointments were “the most important factor’’ in their choice; and more than half of those who selected that factor voted for Mr. Trump. The president would risk alienating part of his constituency by this offer.
But the president would stand above the public fray and would be aligned with the broad national interest at a time of partisan bickering. He would drain the Senate swamp of the desiccated woody plants of partisanship — a boon to all who called in November for dramatic change in Washington and a gift to his successors.
David M. Shribman is executive editor of the Pittsburgh Post-Gazette.