Court nominees caught in crossfire

By David Shribman

Friday, Feb. 17, 2017 | 2 a.m.

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 few months the country has witnessed the high court nomination of a supremely competent jurist, Judge Merrick Garland, be ignored by a stubborn Republican-controlled Senate, followed by the prospect that another supremely competent jurist, Judge Neil Gorsuch, might be blocked by a recalcitrant Democratic minority; and a recent 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 Souter). As recently as 2009, nine 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.

“Now no one from the other party is acceptable,” said Dan Urman, who directs the law and public policy program at Northeastern University. “This is the political equivalent of the Hatfields and McCoys. Each side wants to get even for what happened the last time.”

That could mean extending this dispute indefinitely, threatening the independence of the judiciary. “Prolonged civil wars,” Israeli historian Benny Morris once wrote about the Middle East, “tend to brutalize combatants and trigger vengefulness.”

That’s what’s happening here today. There is no premium in asking who started this (perhaps a group of Democrats including future Vice President Joseph R. Biden Jr. that killed the Supreme Court nomination of Robert Bork in 1987), or for refighting the war over whether a president toward the end of his term ought to make a high-court nomination (as Reagan did with his nomination of Kennedy in November 1987, a result the GOP ignored last year).

At the heart of this crisis 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 to the courts.

Does that mean the Senate has a co-role in the appointment of these jurists? Or does it specifically grant the predominant responsibility to the president, putting the Senate in a minor role? It depends on whom you ask, and what his or her interests are.

Overall, the Senate has rejected a dozen Supreme Court nominees, including a George Washington selection, John Rutledge, who was engulfed in a complex political struggle involving the Jay Treaty of 1794. Two Richard Nixon appointees, Clement Haynsworth and G. Harrold Carswell, were rejected.

Generally, however, the president gets his way, and generally the Senate applies few ideological tests. But now we are in a cycle of revenge that imperils any nominee’s efforts to win confirmation.

“The Democrats are understandably angry about the Garland nomination,” said Kenneth Gormley, former dean of the Duquesne Law School and now president of the university. “At the same time, that does not change the fact that the Constitution says what it says, and the current Senate, including the Democrats, have an obligation to consider the president’s nominee and consent to it if he is qualified. The fact is that President Trump won the election, and he gets to pick the justice.”

But the fact also remains that many Democrats, including Senate minority leader Charles Schumer of New York, are determined to fight the Gorsuch nomination, their ardor heightened after Trump pilloried federal Judge James Robart, a George W. Bush appointee who was unanimously confirmed by the Senate, as a “so-called judge” for putting a hold on his executive order on immigration. Schumer said the president’s attack “raises the bar even higher for Judge Gorsuch’s nomination.”

The possible result is Senate, and thus high-court, paralysis. Orrin Hatch, the Utah Republican who three times was chairman of the Senate Judiciary Committee, said seven years ago that Garland would be a “consensus nominee” for the court, and yet the Judiciary Committee refused even to hold hearings. Schumer presumably was one of those who supported Gorsuch’s appointment as a federal appellate judge for the 10th Circuit in 2006, and yet he is threatening to hold up the Coloradan’s confirmation.

“We could be entering a situation where one party consistently blocks nominees of the other party, waiting its turn to take over the White House,” Gormley said. “Then each party will be obstinate. It turns the system upside down.”

So is there a way out of this mess, the worst since President Franklin Roosevelt tried to pack the court to preserve his New Deal legislation in 1937?

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: 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 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 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 choking woody plants of partisanship — a boon to all who called in November for dramatic change in Washington and a gift to his successors.

David Shribman is executive editor of the Pittsburgh Post-Gazette.