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Op-Ed: A gang of 11 could end the madness of Supreme Court confirmations

President Donald Trump applauds as he stands with Judge Neil Gorsuch in the East Room of the White House after announcing Gorsuch as his nominee for the Supreme Court Jan. 31.
(Carolyn Kaster / Associated Press)

The Supreme Court confirmation process is broken. Republicans say Democrats started it with their ruthless take down of Robert Bork three decades ago. Democrats say Republicans crossed a line when they covered their ears and pretended President Obama had not nominated Merrick Garland to fill the seat left vacant by Justice Antonin Scalia’s death.

It is high time to say to the Senate what a parent says to bickering toddlers: I don’t care who started it, I care who ends it.

In that spirit, I propose a truce on the following terms. First, Republicans must agree not to eliminate the filibuster for the current vacancy. In exchange, Republicans and Democrats make a bipartisan commitment not to invoke the filibuster for the next vacancy. After that, both sides agree to return to the status quo before Scalia’s death, where the filibuster was available but almost never used.

If Democrats and Republicans alike are reading this in horror, then this suggestion is a fair bargain. Truces require compromise on both sides.

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Let’s unpack what this would mean in practical terms. If the Senate retains the filibuster for the current vacancy and the Democrats use it (as they undoubtedly would), President Trump’s nominee, Neil M. Gorsuch. would need 60 votes to be confirmed for the court. There are 52 Republicans in the Senate and all of them are likely to support Gorsuch. Eight more votes would have to come from Democrats and the two independents who caucus with them. With the bitter taste of the Garland debacle fresh in the Democrats’ mouths, it’s unlikely Gorsuch would be confirmed. He is a qualified and well-respected judge, but so, too, was Garland.

To succeed at filling Scalia’s seat, Trump would next need to pick someone capable of winning 60 votes. That could potentially be an older and more moderate Republican, such as appeals court Judge J. Harvie Wilkinson of the 4th Circuit, or Judge Reena Raggi, of the 2nd Circuit. Or perhaps Trump could make a magnanimous gesture and pick Garland himself, a centrist Democrat with broad appeal across the aisle.

Republicans would be unhappy with that result, but they would get a handsome recompense: No chance of a filibuster on the next vacancy, which given the ages of Justice Anthony Kennedy and Justice Ruth Bader Ginsburg — both in their 80s — may come soon. The promise of a regular floor vote, with what looks like a durable Republican majority in the Senate and a Republican in the White House, means that a jurist on their ideological wish list would very likely join the court. Trump could renominate Gorsuch, who is still young by Supreme Court standards, or put up a moonshot such as the very conservative Judge William H. Pryor or even Sen. Ted Cruz.

Why would either side agree to this? Democrats would get a moderate for Scalia’s seat and a scalp to bring back to their progressive constituents. Republicans would get an excellent chance at replacing a swing or liberal justice with a young, rock-ribbed conservative, and they could do so without blowing up Senate norms by undoing the filibuster, which they may well need the next time they are in the minority.

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And it is reasonably doable. It would take only three Republicans — enough to deny the majority necessary to change the Senate’s rules for the Gorsuch nomination — to set a proposal like this in motion. (Institutionalists such as Lindsey Graham, Susan Collins and Orrin Hatch would want to save the filibuster.) If just eight Democrats committed themselves to the overall plan (the number might change after the midterms), their votes could ensure the no-filibuster outcome when the next vacancy occurs.

If Democrats and Republicans alike are reading this in horror, then this suggestion is a fair bargain. Truces require compromise on both sides in the hope of forestalling more grievous harm in the future.

Beyond the stakes of any individual confirmation fight, the bigger prize here is a chance to walk back a process that has careened wildly off the “advice and consent” rails. Any time a Merrick Garland cannot receive a hearing or a Neil Gorsuch gets voted down solely out of spite, you know the Senate’s workings are badly in need of a reset. A grand bargain such as the one I’m proposing is our only hope.

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Trump would surely oppose a bargain. He has a narrow Republican majority in the Senate and he has already shown us that he will seek to press any advantage at all turns. But the Senate was created to ensure that there were grown-ups in the room when major national decisions were made. This is such an occasion. There has never been a better time for senators to act their age.

Jamal Greene is a professor of law at Columbia Law School in New York.

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