The Supreme Court nomination process and consultation
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Last week, Supreme Court Justice Anthony Kennedy announced his retirement after three decades of dedicated service on the highest court in the land. President Donald Trump praised Kennedy as a wonderful Justice and pledged to nominate a successor who would honor Kennedy’s powerful legacy. On Friday, the president stated that he would interview this week five to seven candidates from a list of twenty-five prospects, which the Federalist Society and the Heritage Foundation compiled, and announce a nominee on Monday, July 9. The best way that Trump can discharge his constitutional responsibility for selecting the finest nominee is to institute a transparent process in which the White House assiduously consults with Democratic senators, who must fulfill their constitutional duty to provide advice and consent.

Strident partisanship, divisive rhetoric and incessant “paybacks” have marked the confirmation process for justices ever since the 1987 Senate rejection of Circuit Judge Robert Bork, President Ronald Reagan’s Supreme Court nominee. However, there was an important exception to this downward spiraling process. During 1993 and 1994, President Bill ClintonWilliam (Bill) Jefferson ClintonMontana governor raises profile ahead of potential 2020 bid Dem senator ties Kavanaugh confirmation vote to Trump-Putin controversy Don't place all your hopes — or fears — on a new Supreme Court justice MORE and Senate Judiciary Committee Chairman Orrin HatchOrrin Grant HatchLighthizer to testify before Senate next week as trade war ramps up Senators introduce bipartisan bill to improve IRS Senate panel advances Trump IRS nominee MORE (R-Utah) engaged in frank consultation, which prompted the nomination of D.C. Circuit Judge Ruth Bader Ginsberg and First Circuit Judge Stephen Breyer, both of whom the Senate expeditiously and smoothly confirmed by overwhelming votes of 96-3 and 87-9 respectively.

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President TrumpDonald John TrumpSchiff: Surveillance warrant docs show that Nunes memo 'misrepresented and distorted these applications' Chicago detention facility under investigation following allegations of abuse of migrant children Ex-Trump aide: Surveillance warrants are 'complete ignorance' and 'insanity' MORE can easily implement consultation. For example, last week, the chief executive discussed the nomination and confirmation processes with Senate Judiciary Committee Chair Chuck GrassleyCharles (Chuck) Ernest GrassleyKavanaugh returns questionnaire to Senate panel Sunk judicial pick spills over into Supreme Court fight Andrew Wheeler must reverse damage to American heartland MORE (R-Iowa) as well as Sens. Susan CollinsSusan Margaret CollinsThe Hill's Morning Report — Russia furor grips Washington Overnight Health Care: Novartis pulls back on drug price hikes | House Dems launch Medicare for All caucus | Trump officials pushing ahead on Medicaid work requirements Senate panel to vote next week on banning 'gag clauses' in pharmacy contracts MORE (R-Maine), Lisa MurkowskiLisa Ann MurkowskiThis week: GOP mulls vote on ‘abolish ICE’ legislation Dem infighting erupts over Supreme Court pick McConnell: Senate to confirm Kavanaugh by Oct. 1 MORE (R-Alaska), Joe DonnellyJoseph (Joe) Simon DonnellyHistory argues for Democratic Senate gains Polling analyst: Same Dems who voted for Gorsuch will vote for Kavanaugh Pollster: Kavanaugh will get Dem votes MORE (D-Ind.), Heidi HeitkampMary (Heidi) Kathryn HeitkampHistory argues for Democratic Senate gains Polling analyst: Same Dems who voted for Gorsuch will vote for Kavanaugh Dems pressure GOP to take legal action supporting pre-existing conditions MORE (D-N.D.) and Joe ManchinJoseph (Joe) ManchinHistory argues for Democratic Senate gains Pollster: Kavanaugh will get Dem votes Overnight Health Care: Trump officials explore importing prescription drugs | Key ObamaCare, drug pricing regs under review | GOP looks to blunt attacks on rising premiums | Merck to lower some drug prices MORE (D-W.Va.). This was productive, because Grassley will lead Senate consideration of the nominee, while many observers believe that the other five senators have not decided how they might vote on the nominee.

The president should now expand that process of consultation to include Sen. Chuck SchumerCharles (Chuck) Ellis SchumerData confirm that marijuana decriminalization is long overdue Pollster: Kavanaugh will get Dem votes Democrats slam Trump for considering Putin’s ’absurd’ request to question Americans MORE (D-N.Y.), the minority leader, and Sen. Dianne FeinsteinDianne Emiel FeinsteinSunk judicial pick spills over into Supreme Court fight Senate GOP breaks record on confirming Trump picks for key court Deal to fix family separations hits snag in the Senate MORE (D-Calif.), the Judiciary Committee ranking member. Trump and these leaders should discuss how to implement smooth nomination and confirmation processes and potential candidates to ascertain whether they can reach agreement on the process and the specific nominee.

President Trump and Senate Democratic leaders must engage in candid, collegial discussion about how to improve the process and how to select the best nominee for the Supreme Court and the American people at this moment in the history of the court and the Republic. The president and the Democratic leaders should implement this approach, because it promises to enhance the process and the quality of the nominee selected. Even if consultative engagement does not yield complete agreement, it may well improve the procedures employed and the nominee tapped as well as communication between the president and Democratic leaders at minimal expense in terms of resource commitment.

President Trump has pledged to nominate and confirm a replacement for Justice Kennedy who will respect and carry on his legacy. The chief executive can best attain this goal by assertively consulting, which will enhance the process deployed and the nominee chosen.

Carl Tobias is the Williams Chair in Law at the University of Richmond.