Filling Scalia's Seat, and Dealing with the Filibuster
December 9, 2016 5:10 AM | Posted by Bill Otis | 9 Comments
The direction of the Supreme Court was one of the most important issues in the election, and rightly so. Over the last three generations, both the size of government and the Court's role in influencing it (by, for example, resolving basic cultural questions about marriage, abortion, gun rights, free speech and criminal procedure) have grown tremendously.
Ascendant Republicans and President-elect Trump want a Justice in the Scalia mold -- an originalist and a textualist, a jurist who believes the Constitution says what it says and doesn't say what it doesn't say. It's less clear to me what the Democrats want. Some seem to want a liberal leader in the mold of Justice Ginsburg who will move constitutional doctrine to the left. Others seem to prefer an "identity candidate" -- a woman, gay, transgender, black or Hispanic -- largely for symbolic and/or political value.
It will come as no surprise to readers that I prefer the originalist/textualist choice. Strict fidelity to the text and original meaning of the Constitution seems to me to be the best way to curb judicial license and keep the most fundamental decisions about the rules we must live under where, overwhelmingly, they belong -- in democratic self-government.
With the filibuster for Supreme Court candidates still among the Senate's rules, however, and the Republicans having only 51 (probably to be 52) of the required 60 votes, the question is how to get a Scalia-style nominee confirmed.
My suggestion is this:
Trump should nominate a solid conservative with outstanding credentials as traditionally viewed (i.e., a top-flight legal education and widely respected judicial experience). The nominee should also have good "candidate skills" -- that is, he or she should be engaging and forthcoming in speaking with individual senators and in back-and-forth with the Judiciary Committee.
Judge Diane Sykes comes to mind.
After a full hearing before the Judiciary Committee, the nomination would go to the floor. That's when we get our lesson.
Leader McConnell should provide ample time for serious floor debate, and err toward generosity. After that, he calls for a vote. If eight of so responsible Democrats come over, excellent. The filibuster, a sometimes hazardous but sometimes useful Senate tradition, will have been preserved, and the Court will have its ninth Justice.
If cloture fails, McConnell should wait for a time, then give the Democrats a second chance. Except this time, he will announce that keeping the seat vacant for years, or allowing the minority Party effectively to dictate who fills it, isn't going to happen. He would decline to get specific about how apparently unending obstruction will be dealt with, but would signal seriousness.
There would then be a second vote. If the filibuster is broken, fine, we're back to cooperative business in the Senate, which is certainly my preference. If not, then several things happen in rapid succession: The nominee withdraws; the President very soon thereafter puts forward another thoroughly well-qualified candidate (say, Sixth Circuit Judge Ray Kethledge or Michigan Supreme Court Justice Joan Larsen), and Chairman Grassley schedules a prompt, three-day hearing.
After the nomination gets reported out of Committee, Leader McConnell announces a beginning and ending date for floor debate. He then asks Minority Leader Schumer if the Democrats are going to use the filibuster to throttle this nominee, like the last one. If the answer is anything other than "no," (equivocations won't do), then McConnell changes the Senate rules in the lawful way Kent has outlined, so that the nomination can both proceed to the floor and get to confirmation with 51 votes.
The Supreme Court can operate with eight Justices, but not indefinitely. Elections have consequences, as President Obama has often said, and Trump campaigned explicitly on filling the seat with someone in the Scalia mold.
The Democrats should be given a fair chance to make their case against any Trump pick, and a fair chance to debate it. They can also give themselves the chance to preserve the legislative filibuster (something Harry Reid did not do for the Republicans when he tanked the filibuster on lower court nominees in order to pack the DC Circuit). But if the chosen course is minority willfulness and obstruction-out-to-the-horizon, the only alternative in the end will be -- God forbid! -- majority rule. |
