There is still a way to avoid the “nuclear option” and solve the Senate’s Supreme Court stalemate: Confirm two justices at once.
Here’s what’s going to happen in the next few days. Democrats now have at least 40 votes to filibuster the confirmation vote for Judge Neil Gorsuch. Senate Majority Leader Mitch McConnell is expected to have 50 votes to change two centuries of Senate precedent and ban the filibuster for Supreme Court nominations—“nuclear option.” If enough Republicans go along, Gorsuch will be confirmed mostly on party lines.
No one wants this to happen. Certainly not Republicans; as Senator John McCain told NPR, “I’m very depressed. We’re all arguing against it, but we don’t know any other option.” Senate Democrats, meanwhile, don’t really want to filibuster—but Senate Republicans’ unprecedented decision last year not to give a hearing to President Obama’s SCOTUS nominee has left them no choice. If Democrats go along with Gorsuch, the cheaters win.
And so the slow-motion runaway train rumbles toward the cliff edge. No one likes where it’s going, but no one can do anything about it.
Except they can. If the Senate and the White House really want to solve this problem, they’ll cut a deal. Two justices at once: Gorsuch for Scalia now, and Garland for whoever comes next—probably Justice Kennedy, who is said to be considering retirement. Best of all, it’s the “institutionalist” centrists of both parties who can bring this deal to pass.
Think about it. Judge Gorsuch is eminently qualified and, judging by the rave reviews he’s received from the Heritage Foundation, the Judicial Crisis Network, and the Religious Right, he’s a deep-red conservative like the late Justice Scalia. Seating Gorsuch in Scalia’s seat basically returns the Court to where it was 14 months ago.
For Democrats, the real crisis comes with the next vacancy. Unless one of the Court’s three youngish conservatives—Chief Justice Roberts, Justice Thomas, or Justice Alito—were for some unlikely and unforeseen reason to leave the Court, the next vacancy will move the Court rightward. The shift will be either somewhat rightward, if it’s Kennedy to leave, or far rightward, if it’s one of the four liberal justices to do so.
And that’s what Democrats can’t stomach. It’s not just that the Republicans stole this seat, they say, by not giving Judge Garland so much as a hearing. It’s that, if the Democrats do nothing, that theft will transform the Supreme Court for decades. This isn’t about vengeance or pettiness; it’s about consequences.
Republicans don’t really have an answer to that. Sure, some Democrats had talked about not confirming a justice in the summer or fall of an election year. Others had talked about filibustering Alito or Roberts. But none of that ever came to pass. And a vacancy in February isn’t the same as a vacancy in July. In their hearts, Republican senators know they did something new in 2016.
But Republicans were facing the same prospect of a realignment as Democrats are now. If Justice Scalia had been replaced by a moderate like Garland, that would’ve represented a huge shift. And remember, no one expected Trump to win, so it’s a shift that would have been cemented in the years to come.
Which brings us to the mess we’re in now, with no satisfactory options for anyone. And that’s why the “Two for One” deal makes sense. Replacing Justices Scalia and Kennedy with ideological siblings basically maintains the status quo. It protects Justice Scalia’s seat for conservatives, but because it protects Justice Kennedy’s seat for moderates, it doesn’t reward the shenanigans of 2016. It basically admits that the system is broken right now, and needs a reset before it can function again.
Now, what’s to stop Democrats from filibustering President Trump’s future picks? Well, for one thing, they’d have no real justification. As many have noted lately, Justices Scalia and Ginsburg were confirmed with more than 95 votes each. Ideology should not be the test of confirmation; qualifications should be. Had the Garland debacle not taken place, Democrats would have no grounds for filibustering Judge Gorsuch. And after the “Two for One” deal, with the reset accomplished, they’d have no grounds for filibustering whichever arch conservative President Trump picks from his list for the vacancy after next (like Justice Ginsburg).
Obviously, there are many reasons “Two for One” won’t happen. Trump seems more inclined to go nuclear, and his “negotiation” style is generally mostly intimidation. The rumors may be wrong about Justice Kennedy. Finally, Democrats and Republicans would actually (gasp) have to trust one another.
But there are also some reasons why it should happen—in particular, the institutionalists of the Senate, Republican and Democrat alike, who take the long view of the Senate as a legislative body and don’t want to see it further degraded. They, not Trump and not McConnell, actually hold the keys right now, because if just three Republicans refuse to vote for the nuclear option, it won’t happen. (Three, not two, since Vice President Pence would break a 50-50 tie.)
The institutionalists, in other words, are in control of what happens next.
But that doesn’t mean that it’s reasonable to expect Republicans institutionalists to just fall on their swords and allow an obviously qualified conservative to be blocked. And anyway, what comes next? Another filibuster? How does an endless confirmation stalemate serve the institution of the Senate? No—institutionalists have to get something in return. They have to get Gorsuch.
There’s another reason to like “Two for One.” With the Senate and the FBI investigating President Trump, Democrats have a strong claim that his Supreme Court nomination should not proceed. But institutionalist Democrats also have to worry about the effects of long-term vacancies on the Court. The truncated 2015-16 term was marked by weird compromises, 4-4 deadlocks, and missed deadlines. Even if you think Trump should be impeached, you’ve got to worry, too, about the functioning of the Supreme Court. Indeed, precisely because Trump is in office, we need the judiciary functioning as smoothly as possible.
On the other hand, if you’re on the Trump Train, a grand bargain on the Supreme Court would represent a much-needed victory right now, coming in the wake of the health care debacle and in the midst of the Russia investigation. It would show that Trump really can make deals where others have tried and failed. And while the Christian Right obviously would be unhappy with a Kennedy-Garland-style moderate on the Court, they’ll have a blank slate when the next vacancy arises. And anyway, with Garland, 64, he’d be older than three sitting justices.
Again, so far, Trump has aligned himself with a maximalist, scorched-earth position. But if he really knows the art of the deal, now is a great time to show it off, especially if institutionalist senators leave him with no better alternative.
Finally, there’s a nice irony to “Two for One.” Precisely by admitting that the process is broken, such an agreement would also be a major step in mending it. Getting it done would take coordinated action among all three branches, bipartisanship, and a desire to make a deal rather than score points by not making one. It would turn the worst example of partisanship into the best example of rising above party for country.
Senate institutionalists, all eyes are on you. Centrist Republicans and Democrats can, together, restore a bit of faith in our democracy. We need it right now. We need a deal.