Law & the Courts

A Grand Bargain on the Supreme Court?

U.S. Supreme Court building in Washington, D.C. (Jonathan Ernst/Reuters)
It likely won’t happen because Democrats have little to offer.

Following the death of Justice Ruth Bader Ginsburg, a handful of writers proposed a grand bargain on the Supreme Court.

The deal would look something like this: In the Senate, which Republicans control 53-47, at least four GOP senators would refuse to confirm a new Supreme Court justice before the election, and if Joe Biden wins on November 3 they’d hold the seat open so Biden could fill it after his inauguration in January. In exchange, Senate Democrats and Biden agree not to pack the Supreme Court if they take power.

In a piece in USA Today, lawyer Chris Truax writes:

Once upon a time, senators of both parties understood the necessity of taking the long view. In 2005, when Republicans controlled Congress and the presidency, a bipartisan group of senators known as the Gang of 14 united to save the filibuster. They knew there was no such thing as a permanent majority and what went around would eventually come around.

But that was 15 years ago. And the vast majority of current Republican senators don’t want to appear to act sensibly. Regardless of what they might think in private, people like Ted Cruz are convinced that being seen as bellicose and unreasonable will endear them to the Trump fan base. The only two remaining members of the Gang of 14 are Susan Collins and Lindsey Graham.

Although the author is making a case in favor of a grand bargain, it’s hard to think of a better case against one. He fails to mention that the bipartisan Gang of 14 deal preserving the judicial filibuster for appellate-court nominees in 2005 was nuked by Harry Reid and Senate Democrats in 2013. So, if Republicans give up now on filling Ginsburg’s seat with a justice who would faithfully interpret the Constitution, they get a temporary promise from Democrats not to pack the Court?

How is a deal — a hypothetical deal that Democrats aren’t actually offering right now — tempting if the threat of court-packing isn’t permanently removed?

The threat of court-packing carries its own enormous risks for Democrats, of course. As Joe Biden has acknowledged, it guarantees that Republicans would respond in kind when they take back power. That would guarantee Roe v. Wade would be overturned. Filling the current vacancy merely presents the possibility that Roe might be pared back or overturned.

To be clear, the real source of the strife over the Supreme Court is Roe, not process. Yes, it is true that in 2016, when the GOP Senate majority blocked President Obama’s Supreme Court nominee Merrick Garland, Lindsey Graham and several other Senate Republicans said they would hold a vacant Supreme Court seat open even if a Republican were president. (Some Republican senators such as Lamar Alexander and Majority Leader Mitch McConnell made a more nuanced argument about divided government and what “Senate Democrat leaders have said they would do in similar circumstances” with a Republican president). It is also true that Joe Biden and Senate Democrats argued that the Constitution requires a Senate vote on a Supreme Court nominee. So partisans on both sides have now flip-flopped on standards they made up in 2016.

The primary reason progressives are apoplectic is not inconsistent interpretations of the “Biden rule” or the “McConnell rule” on confirming justices in a presidential-election year. Whether it’s the 2018 Brett Kavanaugh hearings, the 1991 Clarence Thomas hearings, or the 1987 character assassination of Robert Bork — all ferocious fights that did not occur in presidential-election years — the true source of enmity is Democratic fear that Roe might be substantially pared back. And that makes perfect sense. The 1973 case establishing a nearly unlimited right to abortion in all 50 states was “an exercise in raw judicial power,” as Justice Byron White wrote in a dissent. Power unjustly taken for unjust purposes is not easily restored under its proper authority.

The constitutional rule on Supreme Court vacancies does not tell senators what they should do, only what they may do: The president nominates; the Senate confirms or blocks. But filling the Ginsburg seat with a constitutionalist justice is not — as some critics of Senate Republicans have put it — all about power politics or the view that might makes right. It is also about replacing a Supreme Court justice who believed there is a constitutional right to dismember a partially delivered baby with a Supreme Court justice who acknowledges that “right” plainly does not exist in the text of the Constitution. It’s about the Senate’s duty to support and defend the Constitution by confirming a justice who will support and defend the Constitution.

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