How a deal to prevent lawsuits can still happen – Reason.com
On Saturday, I proposed a potential deal that would prevent both a hasty rush to confirm a candidate for the Supreme Court seat left vacant by the death of Justice Ruth Bader Ginsburg, and the danger of Democrats filling the court in retaliation , then next time they have the option of doing it (which could easily happen as early as next year, if they take control of both the White House and the Senate). In essence, the agreement is that the main GOP senators (enough to block a vote on a candidate) agree not to vote on a candidate before the nomination (thus allowing the winner of the election to fill the seat), and the main Democrats (enough to block any short-packing) to commit to opposing short-packing for at least a long period (maybe ten years). Since then, a series of prominent scholars and commentators from all political circles have endorsed my idea or made similar proposals.
Conservative and libertarian supporters of the idea include conservative legal and political commentator David French, Adam White of the American Enterprise Institute, and columnist Jonah Goldberg, among others. Renowned libertarian law professor Richard Epstein and Trevor Burrus of the Cato Institute have urged both sides to, in fact, take the same steps I am advocating even without any explicit agreement.
On the political left, Johns Hopkins political scientist Steve Teles and University of North Carolina lawyer Carissa Byrne Hessick supported my proposal or variations thereof. Hessick suggests that this could “avert disaster”. UC Berkeley Law Dean Erwin Chemerinsky urges Democrats to threaten to fill the tribunal in order to get the GOP to withdraw from the nomination.
I’m probably missing at least a few supporters here. It’s hard to keep track of all the booming comments on the subject.
At the same time, it is clear that the idea has gone less well in the political arena than in the world of academics and commentators. While two GOP Senators (Susan Collins and Linda Murkowski) have said the nomination and confirmation process should only continue after the election, Senate Majority Leader Mitch McConnell has garnered enough support. others to obtain a majority.
This could spell the end of any potential deal. Like I said from the start, the odds were always against my idea. But he is not necessarily dead yet. Some of the GOP senators who backed the nomination may still change their position if they get a reciprocal concession in return from the Democrats: in this case, a guarantee against legal action. In that case, they can prevent accusations of treason by pointing out that they have struck a deal that guarantees at least a conservative 5-4 majority in court for years to come, and 6-3 if Trump wins. In contrast, in the absence of a deal, a 5-4 or 6-3 majority can be quickly overturned once Democrats control both the White House and the Senate.
The key point here is that the calculations of at least some GOP senators could change if this deal were on the table. Most likely not. But we only need two people to join Murkowski and Collins for the idea to work. If Democratic senators make the offer, he could still find the two takers he needs. Alternatively, the offer could come from the Republicans and be accepted by the Democrats (or a sufficient number of them).
There are undoubtedly many on the right and left who believe that this agreement requires that “their” side give up more than is justified. But, for reasons explained in my initial post on the subject, one of the advantages of the idea is that it only needs the support of a few key players on either side to work. I also explain why they would be encouraged to stick to the agreement once it is done.
All of this assumes that offers like this have not already been made and rejected behind the scenes. I am not a Capitol Hill insider and obviously have no idea what, if any, was discussed in private. But if the attempt has not been made so far, it is at least worth a try.
If, as is too likely, we find ourselves in a reciprocal cycle of court crowding, we will all lose, except perhaps for those who will be able to sit on what could eventually be a greatly enlarged Supreme Court. Maybe in time we can all be Supreme Court judges! This might offer little consolation for the fact that the resulting much larger tribunal can no longer function as an effective control of government power.