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A Great Compromise regarding filling Supreme Court vacancies

Posted by Mike G on November 22, 2016

How about President Elect Trump and the Congress reaching the following deal:

a) President Elect Trump selects his conservative pick for the Supreme Court, filling the Scalia vacancy.
b) One of the existing older liberal Supreme Court Justices, probably either Ruth Bader Ginsburg (age 83) or Steven Bryer (at 78), announce their retirement, under the condition that Trump supports the nomination of Barack Obama’s pick, Merrick Garland. Alternatively, replace today’s consistent swing vote in many 5-4 decisions – Anthony Kennedy (age 80), with Garland.
c) Send both of these picks to the Senate simultaneously, as part of a package - requiring approval of both.

Most folks are calling me hopelessly naive, saying that President Elect Trump would never allow a candidate like Garland sit on his bench when he will seek to avail himself of every opportunity to load the court with strict constructionist conservatives aimed at expanding Second Amendment rights, reversing Roe v Wade, and other conservative principles. However, there is precedent for this. In Season 5, Episode 17 of the hit series West Wing, in an episode called “The Supremes,” President Bartlett did just this, and he was hailed as a visionary leader for doing it. (In that instance, Glen Close became the first US Supreme Court Chief Justice!!!)

But let’s still consider the overall benefits to this compromise arrangement:

a) It replaces a conservative justice, Scalia, with another conservative, strict constructionist justice – whoever it is that Trump and his team selects.
b) Similarly, it replaces a liberal justice (Ginsberg or Breyer), with a Garland - recognized by all as being a stellar justice with a moderate, balanced perspective.
c) This “concession” regarding Garland offers President-elect Trump an opportunity to make good on his promise to reach out to all Americans, and it would help his reputation as someone willing to reach across the aisle and avoid further antagonizing the public.
d) Most importantly, such a step could dismiss this notion that the opposing party in the Senate can unduly hold up a nomination until after the upcoming electio. Scalia died under Obama’s watch, with plenty of time for the Senate to honor its constitutional obligation to offer its “advise and consent” towards the Presidents selection, and it is abhorrent that Senate Republicans held up this vote, and “won” – depriving Obama of his chance at replacing Scalia with his selection. By making this deal, Trump could honor the tradition that a sitting President has the constitutionally authorized authority and responsibility to fill that position. As of now, it is unclear how many months prior to a Presidential election can a Senate decide to hold off considering a nominee?  Scalia died a full nine months prior to the end of Obama’s term. What happens when the next Supreme Court Justice resigns or dies say, a full year – or eighteen months, prior to the end of the sitting President’s term? With this deal, a President Trump can put to bed a troubling precedent that can plague future Presidents faced with a similar situation when justices die or retire late in the President’s term.
e) Even with this deal, President Trump will still undoubtedly have his chance to make his mark on this court – a prospect that might unsettle many of us, but it is his Constitutional prerogative. In the next four years – and possibly eight – its likely that he will be able to fill one or two other positions with someone agreeable to his conservative base.

Lets face it. President elect Trump himself might find himself with an opening within 12 months of the end of his term, and find Senate Democrats (who, after the mid term elections of 2018, might be in the majority again) unwilling to consider his nominee.

Honor this deal now, bring some resolution about the Senate voting to confirm “late in a President’s term” Supreme Court vacancies, and avoid this unnecessary confusion based on partisan bickering that alienates so many of us citizens.

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About the Author

Mike G's photoMike Glasser

Mike has a long term relationship with Rogers Park, having lived here at various times in his life, most recently returning to the neighborhood in August, 2009. While living here as a third year law student, he remembers drunken nights at Biddy Mulligan’s and hosting a couple of memorable parties that he, hypocritically, now forbids his own tenants from having. Years later, after completing his stint as a lawyer, Mike started investing in apartment buildings in Rogers Park (and elsewhere), and soon after, did what many newly divorced real estate investors do: he moved into one of his buildings. In 1992 Mike was one of the founding members of the Rogers Park Builders Group, an organization that he eventually headed for six years, until yielding those reigns three years ago. Around a decade ago, on a whim, he reserved the web site “Rogerspark.com,” which he has been developing ever since, and which co-hosts RP BizArts networking events. Mike is the proud father of three wonderful children, Amy, Mitch and Ella.

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