In 2016, every Democrat claimed the president’s choice to fill the vacancy must be honored right until he’s led out of the White House upon the inauguration of his successor. Republicans remained steadfast that such a decision should be delayed in deference to the electorate’s guidance that November.
Now that a vacancy has been created in the final year of Donald Trump’s term, just switch the political stripes and you’ll know where your senator stands today. It’s understandable why these senators will act as contortionists to justify their newly found religion. The stakes are high. Religious freedom, the right to bear arms, reproductive issues, free speech, immigration laws and affirmative action, to name a few.
So Democrats, such as Rep. Alexandria Ocasio-Cortez, suggest violence will break out (wink, wink, nod, nod) if Republicans pursue filling the seat. “McConnell is playing with fire,” said the unofficial leader of the Democratic radical left. Republicans such as Sen. Lindsay Graham, are willing to unabashedly disavow a promise he made — after blocking an Obama nominee — that he would hold off on a fourth quarter vacancy in a Trump administration.
This isn’t the first time this type of judicial turmoil has torn the nation apart, and it likely won’t be the last.
But, perhaps, there is a way to mitigate the drama and create a process that promotes more balance, certainty and, above all, acceptance from the American people.
The proposal is one I address in my newly published book, Solutions to America’s Problems.” Chapter 16 deals with reforms that could be made to the Supreme Court via a 28th constitutional amendment.
Whether or not our nation takes a sharp turn to the radical left or right is dependent on one thing: the pure dumb luck of whether the commander in chief at the time of the vacancy is a Democrat or a Republican.
There’s an alternative path, and no, it does not involve stacking the court.
Conservatives pine for more justices in the mold up Scalia or Clarence Thomas. The radical left hopes for another RBG. But the mushy middle is quite content with a moderate justice such as Anthony Kennedy, who truly did evaluate each issue based upon its own individual merits. In today’s tribal politics, the odds of getting another Kennedy are slim (despite Chief Justice John Roberts’ erratic reversals of prior positions to fit his preconceived notion of what will look best for his court’s image.)
So, if balance is what most Americans want on the court, why not create a structure that is far more likely to give us just that. Let’s float the idea that would provide that four justices be selected by Democrats and four by Republicans, each to serve a single, staggered 16-year term. The final swing vote could be selected by the president at the time the vacancy occurs, but would require the 60-vote majority necessary before Mitch McConnell went nuclear.
Hoping a justice you detest becomes incapacitated is hardly a worthy concept to endorse.
Some may consider this proposed amendment a radical idea, but I’d suggest it’s infinitely less radical than increasing the court’s size until you achieve your desired ideological majority. It would also result in a far more mainstream court than would otherwise come about when one president, with one philosophical bent, gets control over three or four vacancies.
If Republicans senators cobble together the majority needed to fill the vacancy, the rank and file will be gloating over finally securing a rock solid conservative majority — for now. But the cyclical gods will one day have the Dems on top, to the chagrin of the GOP faithful.
The best play is to recognize we are a nation ideologically split down the middle. For the sake of national unity, our highest court should be reflective of this reality.
Steve Levy served as Suffolk County Executive, as a NYS Assemblyman, and host of “The Steve Levy Radio Show.” He is the author of just released “Solutions to America’s Problems.” Www.SteveLevy.info tweet to @SteveLevyNY. Read Steve Levy’s Reports — More Here.