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 ClintonHarris off to best start among Dems in race, say strategists, donors For 2020, Democrats are lookin’ for somebody to love A year since Parkland: we have a solution MORE and Senate Judiciary Committee Chairman Orrin HatchOrrin Grant HatchOrrin Hatch Foundation seeking million in taxpayer money to fund new center in his honor Mitch McConnell has shown the nation his version of power grab Overnight Health Care — Presented by PCMA — Utah Senate votes to scale back Medicaid expansion | Virginia abortion bill reignites debate | Grassley invites drug execs to testify | Conservative groups push back on e-cig crackdown 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.


President TrumpDonald John TrumpMcCabe says he was fired because he 'opened a case against' Trump McCabe: Trump said 'I don't care, I believe Putin' when confronted with US intel on North Korea McCabe: Trump talked to me about his election victory during 'bizarre' job interview 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 GrassleyHigh stakes as Trump, Dems open drug price talks Senate approves border bill that prevents shutdown Grassley raises voice after McConnell interrupts Senate speech MORE (R-Iowa) as well as Sens. Susan CollinsSusan Margaret CollinsGOP Green New Deal stunt is a great deal for Democrats On unilateral executive action, Mitch McConnell was right — in 2014 Congress must step up to protect Medicare home health care MORE (R-Maine), Lisa MurkowskiLisa Ann MurkowskiOn unilateral executive action, Mitch McConnell was right — in 2014 The Hill's 12:30 Report — Presented by Kidney Care Partners — Trump escalates border fight with emergency declaration On The Money: Trump declares emergency at border | Braces for legal fight | Move divides GOP | Trump signs border deal to avoid shutdown | Winners, losers from spending fight | US, China trade talks to resume next week MORE (R-Alaska), Joe DonnellyJoseph (Joe) Simon DonnellyOvernight Energy: Trump taps ex-oil lobbyist Bernhardt to lead Interior | Bernhardt slams Obama officials for agency's ethics issues | Head of major green group steps down Trump picks ex-oil lobbyist David Bernhardt for Interior secretary EPA's Wheeler faces grilling over rule rollbacks MORE (D-Ind.), Heidi HeitkampMary (Heidi) Kathryn HeitkampOvernight Energy: Trump taps ex-oil lobbyist Bernhardt to lead Interior | Bernhardt slams Obama officials for agency's ethics issues | Head of major green group steps down Trump picks ex-oil lobbyist David Bernhardt for Interior secretary On The Money: Shutdown Day 27 | Trump fires back at Pelosi by canceling her foreign travel | Dems blast 'petty' move | Trump also cancels delegation to Davos | House votes to disapprove of Trump lifting Russia sanction MORE (D-N.D.) and Joe ManchinJoseph (Joe) ManchinSenate confirms Trump pick William Barr as new attorney general GOP wants to pit Ocasio-Cortez against Democrats in the Senate Senate poised to confirm Trump’s attorney general pick 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 SchumerGOP Green New Deal stunt is a great deal for Democrats National emergency declaration — a legal fight Trump is likely to win House Judiciary Dems seek answers over Trump's national emergency declaration MORE (D-N.Y.), the minority leader, and Sen. Dianne FeinsteinDianne Emiel FeinsteinFeinstein says she thinks Biden will run after meeting with him Trump judicial nominee Neomi Rao seeks to clarify past remarks on date rape Bottom Line 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.