It gets downright depressing to see conservatives and liberals, Republicans and Democrats oiling their guns, sharpening their knives and starting to circle each other in a modern day version of the legendary gunfight at the OK Corral.
It is the latest iteration of that age-old fight which starts off with “he hit me, first! Therefore I’m entitled to hit him back.” Yet even a pre-schooler in a sandbox knows two wrongs don’t make a right. Democrats correctly called foul on the refusal of Senate Republicans to take up President Obama’s nomination of Merick Garland to the Court just about a year ago.
So much for the “advise and consent role” the Constitution lays out as a major responsibility of the U.S. Senate. Instead, the Republican Senate cynically would not even hold a hearing on the nomination let alone hold a Judiciary or floor vote on the nomination.
One reason, however, many Republicans held their noses and still voted for Donald Trump was his promise to nominate Judge Antonin Scalia’s replacement from a list compiled by conservative of “acceptable” court nominees.
Worthy though Federal Judge Neil Gorsuch is, Senate Democrats are planning on filibustering the Trump nomination offering as an excuse that “turn about” is fair play. Because it takes 60 votes to overcome a Senate over-ride of a filibuster, many folks expect Gorsuch may have to withdraw his name, especially if Majority Leader Senator Mitch McConnell of Kentucky does not avail himself of the “nuclear option” - a simple majority vote of those present and voting.
Even then, if just two Republicans abstain a tie vote would go to the chair to cast the tiebreaker, and this is the only situation that allows the sitting vice president, Mike Pence, to cast the tie-breaking vote.
The net result is two exeedingly competent nominated justices, Merick Garland and Neil Gorsuch, both with exceptional records, could be destroyed in this overly politicized gunfight.
Can this stalemate, this at loggerheads ever be resolved? Yes, there is still room for compromise and bi-partianship and there is a path forward that could neutralize the vitriol and animosity.
Here is the proposal:
Step #1: This step is designed to reduce the overt and crippling partisanship now surrounding Supreme Court nominations.
The Senate Judiciary Committee creates a Special Subcommittee to vett all Supreme Court and Federal Distict Judge nominations. The subcommittee chair would be Utah Senator Orrin Hatch. the sitting chair. The ranking minority member, Vermont Senator Patrick Leahy, would also be a member.
Altogether there will be seven members: one seat will be allocated to the sitting president of the American Bar Association. Another seat will be assigned to those who once served as U.S. Solicitor Generals. The majority party will name qualified members of the legal profession to two seats and the minority party will nominate the last seat.
In order for a name to move forward to the full Judiciary Committee a person must have five of the seven votes.
Step #2. This step is designed to forge the only realistic compromise now clouding the nomination of Justice Garland and Justice Gorsuch. Neither should become “road kill” or “collateral damage” in the current fight.
The key though is for one of the several judges on the current Supreme Court who should resign because of age or illness. One of them is the linch pin to this win-win compromise. For arguments sake let’s say Justice Ginsberg volunteers to step down.
The judiciary committee then resurrects the nomination of President Obama’s nominee and the two nominations, Garland and Gorsuch are vetted by the full committee and then sent to the floor for a vote where, based on qualifications alone, both are approved and once again there is a functioning nine-member Supreme Court.
Thereafter future nominees for all federal judgeships are run through the process outlined in Step #1. This is a realistic solution but probably too sensible to be adopted. If someone has a better solution I’m all ears.