Will the Supreme Court end up deadlocked if Kennedy retires?

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Speculation continues about the possibility that Justice Anthony Kennedy, who has been the swing vote in many of the Supreme Court’s most significant decisions, will announce his retirement in June. In an extraordinary, full page “open letter” on Sunday, the New York Times editorial page pleaded with Kennedy to stay on the bench. After reviewing the key decisions that comprise Kennedy’s legacy of 30 years, the letter notes grimly that if the Republicans “can install another rocked-ribbed conservative like Neil Gorsuch, the court will have a locked-in right wing majority for the rest of our lifetimes.”

I fully share the dread expressed by the New York Times letter. But our constitutional system should provide a better alternative than begging Kennedy to stay if he decides that he is ready to retire. In fact it does, in the Senate’s constitutional responsibility and power to “advise and consent’ to the president’s nomination of a Supreme Court justice.

{mosads}If Kennedy chooses to retire in June, President Trump would clearly want to nominate another representative of the “constitutional” right wing, spearheaded by the Federalist Society, in the tradition of Justices Antonin Scalia and Clarence Thomas. It is conventional wisdom that Trump, or Vice President Mike Pence if he became president, would never nominate a respected moderate to be a justice.

But in fact, the Senate could quite easily force the president to do so. A bipartisan group of senators could advise the president that he must find a nominee who can win 60 or even 70 votes for confirmation. The White House would, of course, respond that the senators cannot filibuster, because of the precedent established during consideration of the Gorsuch nomination, so the nominee only needs the vote of 50 senators plus the vice president. Then, the group of senators would tell the president that he won’t have 50 votes unless he names a distinguished nominee who can get 60 or 70 votes.

This scenario requires some group of senators to say, “We were willing to support Gorsuch to replace Scalia, but we will not support a nominee of similar views when Justice Kennedy’s seat is being filled.” The senators could certainly offer a list of possible nominees who would be acceptable choices. It is worth noting that in 1988, in the aftermath of the bitter fight in which the Senate rejected the nomination of Robert Bork to the Supreme Court, Kennedy was confirmed by a vote of 97-0, in part because President Reagan, seeking a conservative nominee who could win broad support, consulted with Senate Judiciary Committee Chairman Joe Biden.

A suggestion like mine usually evokes the response that it couldn’t happen now. Most Americans, particularly the most jaded participants in politics, have become so accustomed to the bitter, unyielding partisanship of tribal politics that they can’t even conceive of a different scenario. In contrast, I don’t find it that difficult to envision a group of Senate Republicans, as well as Democrats, who would not want Donald Trump, Jeff Sessions, Mitch McConnell and the Federalist Society to pick the next Supreme Court justice at this perilous moment in our history.

It is fair that the burden should fall disproportionately on Republican senators. Achieving a secure conservative majority on the Supreme Court has been the pet project of the Republican Party for exactly a half century, since Richard Nixon became president in 1968. Starting with Nixon, over the next quarter century, Republican presidents nominated 10 consecutive Supreme Court justices. The count now stands at 13 of the last 17. Despite this lopsided record, the Republican legal right wing could not achieve the guaranteed majority it was seeking because so many of the justices proved to be fair-minded guardians of the Constitution.

Through the years, the Federalist Society and its allies have been bitterly disappointed by Justices Harry Blackmun, Lewis Powell, John Paul Stevens, Sandra Day O’Connor, David Souter and Kennedy himself. They have even turned on Chief Justice John Roberts, a choice which had elated them, when he cast the deciding vote to uphold the Affordable Care Act. That track record makes it clear that their views of the Constitution are extreme and should not be allowed to dictate the choice of the next justice.

In its “advise and consent” role, the Senate stands at the intersection of the three branches of government. At best, the Senate serves, in Walter Mondale’s great phrase, as the “nation’s mediator” on the most challenging issues. Given the history and the stakes, a group of Republican senators should be willing to insist that the next justice be an authentic, fair-minded moderate. Many law school deans, such as Harvard’s John Manning, would be superb choices.

If the president resists making such a nomination, it would be far better for the Supreme Court to remain deadlocked at 4-4, rather than have the Senate agree to cementing a hard-right majority for the next 30 years. My guess is that after being put on notice by the senators, Trump, who loves to do big things, might overcome his initial anger, and nominate the next “great” justice who fits the Senate’s specs.

Ira Shapiro is a former Senate staffer and Clinton administration trade official. He is now president of Ira Shapiro Global Strategies and author of “Broken: Can the Senate Save Itself and the Country?,” a sequel to “The Last Great Senate: Courage and Statesmanship in Times of Crisis.”

Tags Anthony Kennedy Donald Trump Jeff Sessions Joe Biden Law Mike Pence Mitch McConnell Republicans Senate Supreme Court White House

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