I always find the most amusing people on the political spectrum to be the moderates who are, allegedly, just trying to get people to get along. They typically come in two flavors. You have Republicans who have political power but seem embarrassed by the idea that they are winning and so they try to dilute their power and influence by giving some to Democrats. The other flavor, of course, is rabidly partisan Democrats who are out of power and trying to regain it by convincing the previously mentioned Republicans to be reasonable and share it with them.
Donald Trump has a unique opportunity to reshape the American judiciary… if he acts and can prevail upon Mitch McConnell to act.
Mitch McConnell’s refusal to confirm many of President Barack Obama’s judicial nominees has set the table for Donald Trump to dramatically reshape the judiciary over the next four years, as the Republican Senate set a modern record for the fewest confirmations of lifetime judicial appointees.
The Senate GOP confirmed just 20 lifetime judicial appointments to district and appeals courts in its two years in the majority, the lowest number by far in the past 28 years, according to a Congressional Research Service report obtained by POLITICO. That means that President-elect Trump will have major sway over the courts next year, starting with the Supreme Court and going all the way down to the district level.
The judicial appointment of most interest, of course, is that of Neil Gorsuch to fill the seat vacated when Justice Antonin Scalia died. In a fair world, Gorsuch would be easily confirmed. In an unfair one, McConnell has more than enough power to break Democrat resistance if he chooses to exercise it. And it looks like Gorsuch will be confirmed after requisite histrionics. But the real prize is downstream. Kennedy is 80, Ginsberg is 84 in a couple of weeks, Breyer is 78. The actuarial tables alone say that Trump will get at least two more appointments before 2020. The proper justices in those vacancies could lock in a mostly conservative court for at least a generation.
Now comes Democrat Senator Tom Udall, the out of power Democrat, with an appeal to the various happy-losers-ashamed-winners in the Senates GOP caucus.
The Democrat from New Mexico presented the plan Monday morning to Gorsuch, President Donald Trump’s nominee for the Supreme Court, as well as to Gorsuch’s team of White House aides and former Sen. Kelly Ayotte, who’s been attending Gorsuch’s meetings with senators.
His proposal is for Trump to meet privately with Supreme Court justices who are interested in retirement. If one of those justices decided they would be willing to retire, and if Trump promises to nominate Garland, President Barack Obama’s unconfirmed former SCOTUS pick, in their place, then the retiring justice would submit a letter of resignation contingent on that promise.
Then, both Garland and Gorsuch would be voted on simultaneously.
This is a great example of trying to get Trump to negotiate with himself. Why would he give the Democrats a justice and lock in the balance when he can change the game?
CNN notes that this is not a terribly original idea:
The idea closely follows a plot line from an episode of “The West Wing” television show. In season 5, episode 17, “The Supremes,” a spot on the Supreme Court opens up and the White House works out a deal with another justice to retire so they can replace him with both a liberal justice while Republicans can get their pick of a more conservative justice.
Jennifer Talhelm, communications director for Udall, told CNN that the senator did not get the idea from the West Wing, and that while he has maybe seen an episode or two, he doesn’t watch the show.
As the creative director in the ad agency where I used to work said, “there is no such thing as an original idea, you just forget where you stole it.”