By Johanna Markind
If anyone in the federal government was discomfited by President Donald Trump’s election, it was probably Supreme Court Justice Ruth Bader Ginsburg.
The 85-year-old associate justice, who recently underwent surgery for lung cancer, began the year by missing oral arguments on Jan. 7. Given the justice’s advancing age and declining health, it’s uncertain whether she will be able to outlast Trump and, in light of the opinions she has written, she’d almost certainly prefer to have a Democrat nominate her successor.
Here is a suggestion that may help Ginsburg, Trump and the nation.
After Justice Antonin Scalia’s sudden death in February 2016, President Barack Obama nominated Judge Merrick Garland to replace him. Garland, chief judge of the Court of Appeals for the D.C. Circuit, was well thought of, even among political conservatives like Sen. Orrin Hatch of Utah. Garland had a reputation for moderation, but tilted left-of-center.
Scalia did not. He was overall a strict constructionist who staked out right-of-center positions. Replacing him with Garland would have dramatically changed the composition of the high court, which at the time was evenly divided between justices voting right-of-center (Chief Justice Roberts, Justices Kennedy, Thomas and Alito) and those voting left-of-center (Justices Ginsburg, Breyer, Sotomayor and Kagan) on many hotly-contested questions.
Judiciary Committee Chairman Charles Grassley of Iowa refused to hold a hearing, and Majority Leader Mitch McConnell of Kentucky refused to hold a vote, arguing that precedents supported their refusal to confirm a nomination made in the final year of the president’s term.
The Senate’s Republican majority was frustrated in its dealings with Obama, such as his not submitting the Iran and climate change treaties for Senate ratification. Nevertheless, the Senate’s refusal to consider Garland’s nomination further polarized the nation and, in turn, contributed to the delaying tactics the Senate’s Democratic minority brought to bear against Trump’s Supreme Court nominees.
The poisonous atmosphere made it more difficult for Republicans to confirm Neil Gorsuch and Brett Kavanaugh, two Republican nominees replacing two Republican appointees.
It wasn’t just Republicans who complained about the process. Ginsburg described the Kavanaugh confirmation hearings as a “highly partisan show” in which both parties moved in lockstep. The difficulties may well discourage well-qualified judicial candidates from putting themselves and their families through the process, and further poison the workings of the Senate, which used to be known as a collegial institution. In other words, the extreme partisanship is bad institutionally for both the Senate and the court.
Now, imagine what will happen if Ginsburg’s health compels her to leave the bench within the next two years. She is effectively the activist standard-bearer for the left-of-center minority. Trump would then have the opportunity to nominate a replacement for confirmation by a Republican-controlled Senate. If the two prior hearings were unpalatable, imagine what this one would be like.
If Ginsburg’s seat becomes vacant, I suggest that Trump nominate Garland to replace Ginsburg. He could even offer to do it prospectively, as part of a deal to end a future government shutdown.
Hard-core Ginsburg fans won’t love Garland, who is more moderate than she is. He also seems to be more of a realist than an idealist, whereas Ginsburg is the opposite. But Garland is a good judge with solid credentials, tilts left and was, in fact, nominated by a Democratic president. He’s a better choice than liberals could ordinarily hope for from a Republican president who has outsourced his nominations to the Federalist Society.
What incentive would Trump have to name Garland? It would let him make a grand conciliatory gesture to people still seething over the Senate’s failure to confirm (or at least vote to confirm) Garland. After all, given the increasingly strong possibility that Trump will be able to name Ginsburg’s replacement, then even if the Senate had confirmed Garland in 2016, the court’s composition would ultimately be the same as it would be if Garland is nominated and confirmed now.
Closing this open wound may make it easier to strike deals with Congress in the future over infrastructure and
What’s more, it gives Trump another bargaining chip to resolve the current budget impasse. In exchange for the president’s assurance that he would nominate Garland if Ginsburg’s seat opens, and legalization of illegal aliens who came to the United States as children, Democrats could agree to more funding for border security. The Democrats could claim victory for saving Ginsburg’s seat from the right as well as legalizing a sympathetic group of illegal immigrants, while Trump could claim victory for obtaining more funding for “the wall.”
With luck, such a gesture would also help restore collegiality to Congress and the judicial confirmation process — or at least begin to restore the basic civility that enables republican government to function. n
Johanna Markind is a Philadelphia-area attorney and writer.