THE BLOG
02/02/2017 09:09 am ET Updated Feb 03, 2018

How Democrats Should Fight The Battle Over Merrick Garland's Supreme Court Seat

NICHOLAS KAMM via Getty Images

Yesterday, President Trump nominated Neil Gorsuch to the United States Supreme Court to replace Justice Scalia. Happily, President Trump did not repeat his previously stated theory that the late justice was smothered by a pillow.

Since Robert Bork's nomination in the 1980s, and perhaps before that, all Supreme Court nominations have been disputed. However, yesterday's nomination is imbued with additional controversy for two reasons.

First, the current eight-member court is evenly divided ideologically. This nomination will shift its ideological balance, perhaps not from when Justice Scalia was still on the court, but certainly from where the court is now.

Second, and more important, is the fact that this seat was effectively stolen by the Republicans. They flouted all historical precedent to deny Merrick Garland a vote or even a hearing, despite the fact that Judge Garland was nominated by President Obama a full 10 months before his presidency ended.

Thus, President Trump is taking advantage of Republican intransigence to nominate someone who is, by all accounts, personable, but extremely conservative in the mold of Justice Scalia. The Democrats have indicated that they may filibuster the Gorsuch nomination, and frankly, they have no other choice. It makes no sense to refrain from filibustering because Senator Mitch McConnell might use the "nuclear option" to eliminate the filibuster for Supreme Court nominations. There is no point in having the filibuster as a tool if you are unwilling to use it for fear of losing it.

Further, the Republicans deserve to face a filibuster. Republicans and Democrats agreed that Merrick Garland was an eminently qualified candidate. Republican Senator Orrin Hatch once said there was "no question" Garland would be confirmed if nominated to serve on the Supreme Court. In a complete dereliction of their duty to the Constitution and the country, the Republicans blocked Judge Garland's nomination anyway. Frankly, Mitch McConnell and his confederates have no standing to complain about Democratic opposition to Judge Gorsuch.

A problem with the filibuster (assuming it is not eliminated) is that it is difficult to sustain politically for long, especially if we as Democrats look unreasonable. Saying "we won't confirm anybody" is unlikely to resonate with the public, especially at the beginning of a four-year term. I believe there is a better way to proceed.

In 2013 there was a vacancy on the Pennsylvania Supreme Court. Our governor at the time, Tom Corbett, needed to nominate someone to fill that seat. As minority Chairperson of the Senate Judiciary Committee, I was concerned that Corbett would nominate a right-wing extremist. I had one tool to block a bad appointee; it wasn't a filibuster, but it was the conceptually similar requirement that his nominee required two thirds of the Senate to be confirmed. It would not have been sustainable for my caucus to simply refuse to confirm any Corbett nominee for the remainder of his term. So I came up with an unconventional plan.

I gathered my caucus and asked them to stand with me. I then sent an open letter to Governor Corbett. I wrote that the Democratic caucus would not confirm any extreme nominee, but that we were fair and reasonable people. I provided the names of five moderate, thoughtful and respected Republican judges who we agreed to confirm if nominated by Corbett. This allowed us to be fair and non-partisan. We weren't trying to deny Governor Corbett the opportunity to fill a vacancy on the court. We did not oppose all Republican appointees; we only opposed the extreme ones.

Not surprisingly, Governor Corbett issued a statement asking who the hell I thought I was. He pointed out that judicial nominations were his prerogative as Governor. Who was a lowly state senator to tell him who to pick? However, after that initial burst of bluster, Governor Corbett ultimately chose one of the judges on my list. Justice Corey Stevens was quickly and easily confirmed and served with distinction while on the court.

Senator Schumer and the Senate Democrats should do the same. They should identify five well-respected, non-ideological Republican judges and offer to confirm whichever one President Trump picks. It's unlikely that the judges on this list would ever be nominated by a Democratic president. By virtue of winning the election (let's put aside all the controversy surrounding that), the new president, historically, deserves the chance to put a justice of his party on the court. Similarly, Senate Democrats were independently elected. They have the right to participate in the process in a reasonable way. This suggestion is the perfect way to serve both interests. I think Merrick Garland would approve.