The SCOTUS Deal? How to Make it Work for Conservatives

A few Democratic senators are floating a trial balloon via Politico.

“A group of Senate Democrats are beginning to explore trying to extract concessions from Republicans in return for allowing Supreme Court nominee Neil Gorsuch to be confirmed, according to multiple sources familiar with the matter. The deal Democrats would be most likely to pursue, the sources said, would be to allow confirmation of Gorsuch in exchange for a commitment from Republicans not to kill the filibuster for a subsequent vacancy during President Donald Trump’s term. The next high court opening could alter the balance of the court, and some Democrats privately argue that fight will be far more consequential than the current one. At least three rank-and-file GOP members would have to pledge not to vote to unilaterally change the Senate rules through a majority-only vote later in Trump’s term — the so-called nuclear option.”

This harebrained scheme will never see the light of day in serious discussion. It is merely “desperate times calling for desperate measures”. No conservative website has come close to endorsing this idea, for a whole host of reasons. But considering this by taking logic to its extreme brings up an interesting scenario. Supposed the Republicans agreed with one caveat? The deal would only be implemented if Justice Ginsburg’s seat is the next vacant. After all, why agree for Justice Kennedy’s seat? He was appointed by a Republican.

The vast, vast majority of decision making bodies, (Board of Director, SCOTUS) have an odd number of members. Nobody likes or wants an evenly split vote. This is the situation Americans find themselves in currently. There are eight SCOTUS justices,  three conservative, one moderate centrist, and four that reliably vote liberal. The highest court of our land finds itself tied on far too many important decisions.

Once Neil Gorsuch is confirmed, there will be four conservative justices plus the moderate Kennedy, against four liberals once again giving conservatives the upper hand. But, and this is a very important but: the nominee to Ginsburg seat doesn’t have to be a liberal. President Trump can nominate another conservative. Which means Democrats would go crazy, and they would filibuster.

But in that scenario, what Republican would really care? There would be five in the conservative blocking bloc against three liberals. The most probable consistent voting scenario would be five to three. To be sure in a few cases, a four-four tie would be reality, and every so often Justice Kennedy goes completely off the reservation voting liberal. In either case, by and large, horrible liberal decisions are not being implemented. But the majority of the opinions would be written by Justices Alito, Gorsuch, Roberts, Thomas and Kennedy. Think about that SCOTUS team ruling the roost for a few years.

Seeing how Politico delights in making its living off of anonymous sources, it might be worthwhile for an unnamed Republican to use them to float this trial negotiation balloon. Just to see them squeal.

About the author

Wm. P. Fitzhenry

5th generation Texan, 2nd generation reformed Presbyterian, a twin and a serial entrepreneur.

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