An end game on Supreme Court nominations

Discussion of the confirmation process for Justice Kennedy’s replacement has quickly focused on two pro-choice Republican female senators, Susan Collins of Maine and Lisa Murkowski of Alaska. Both have an unusual degree of immunity against right-wing groups’ threats of primary challenges: Sen. Collins is probably the only kind of Republican Maine voters would send to Washington, and Sen. Murkowski won re-election as an independent after losing her primary to a conservative.

If all Democrats oppose a nominee and Sen. John McCain (R-Ariz.) is unable to vote or votes “no”, either one of them could doom a nomination; if Sen. McCain returns to support the nominee, the two together could decide the question.

{mosads}Some other Republicans, such as retiring Sens. Bob Corker of Tennessee and Jeff Flake of Arizona, also could conclude that questions about the president’s mandate, the role of a hostile foreign power in winning it, and their party’s refusal to consider the moderate President Obama nominated much earlier in an election year, should preclude allowing President Trump to so decisively reshape American law for decades to come.

For all these senators, however, a looming question is what comes next? If a polite but extreme nominee is defeated, what is the end game? Without a plausible answer, advocates of an at least modestly-persuadable Supreme Court will have a very hard sell.

In the near term, the Court is likely to proceed for a time with eight members. That is not nearly as bad as it sounds: the Court did remarkably well during the period between Justice Scalia’s death and Justice Gorsuch’s installation, often deciding cases on narrower grounds to bridge the justices’ ideological divide.

President Trump’s next nomination is likely to be a defiant one designed to mobilize the Republican base in the midterm elections. If he or she is similarly rejected during a lame-duck session, what then?

Assuming those elections produce a Senate pretty much as it is now, the cycle of extreme nominations and denied confirmations theoretically could continue indefinitely. But likely it will not.

History tells us that third nominees often tend to be notably more moderate. After the Senate rejected Clement Haynsworth and Harold Carswell, President Nixon nominated Harry Blackmun, who began as a staunch conservative but steadily moderated, particularly after authoring Roe v. Wade. After two high-profile conservative nominations failed, President Reagan chose a little-known appellate judge from California: Justice Kennedy.

More broadly, President Trump celebrates his deal-making skills and is eager to leave an identifiable legacy. The judicial confirmation process is clearly broken: either almost none succeed, if the opposition party controls the Senate or is allowed to filibuster, or almost all do, as is the case now. Senators afraid of primary challenges are deathly afraid to cast decisive votes for the other party’s nominees.

President Trump could seize an opportunity missed by both former Sen. Harry Reid (D-Nev.), when he ended the filibuster for lower-court judges, and Sen. Mitch McConnell (R-Ky.), when he did so for Supreme Court nominees. Senate rules could be modified to abolish the filibuster when, but only when, the president nominates a judge recommended by a bipartisan commission of experts appointed by the Senate majority and minority leaders.

This approach fits well with the Constitution, which calls for the Senate’s “advice” as well as its “consent” to judicial nominees. The president could nominate whomever he or she wishes, but if the president disregards the panel’s recommendations he or she would have to be prepared to make a case for the nominee to the Senate and the American people.

This approach is also consistent with other procedures for circumventing the filibuster. Most proposals to close military bases are subject to filibuster, but those of a special non-partisan commission of experts are not. Senators may filibuster routine budget bills but not those that conform to the rigorous limits on reconciliation legislation or presidential rescission packages. When senators lose the right to filibuster due to the imposition of cloture, strict germaneness rules limit the scope of amendments. The idea is that the filibuster should only be surrendered when assurances are in place limiting potential harm from the measure being voted upon.

Initially, Sens. McConnell and Chuck Schumer (D-N.Y.) might select sharp partisans for such a commission, leading to a temporary deadlock. But few serious people want to waste their time on a failed commission. Eventually, it would agree to a list of relatively moderate conservatives and relatively moderate Democrats. President Trump would no doubt nominate one of the conservatives, just as future Democratic presidents would nominate one of the liberals.

New York long has had a judicial nominating commission. The result has been a high court that generally reflects the governors’ outlooks but is populated with exceptionally able, thoughtful judges and devoid of extremists.

Almost any serious student of the federal courts has favorite jurists whose skill and temperament admirably qualified them for the Supreme Court but who were too moderate for either party to nominate. Mine include the brilliant Edward Becker, appointed to Pennsylvania federal courts by Presidents Nixon and Reagan. Creating a path for these kinds of judges to reach the Supreme Court is crucial to reversing the politicization of the judiciary and continue having genuine swing votes.

David A. Super is a professor of law at Georgetown Law. He also served for several years as the general counsel for the Center on Budget and Policy Priorities.