A Safer Response to Garland-Gorsuch
Senate Democrats are ready and now able to filibuster Judge Neil Gorsuch’s nomination to the Supreme Court. Senate Republicans are preparing to “go nuclear” and take away the filibuster rule for Supreme Court nominations in response. Allow me to propose a compromise in the form of a formal rule:
No nominee to the United States Supreme Court made on or after February 23 of the last year of a President’s term shall be given hearings nor voted upon by the Senate until the first Wednesday after the first Monday in November of that year.
Note that this rule would be binding upon all Presidents starting with the current incumbent, and apply regardless of which party has control of the White House or which party has control of the Senate. So if President Trump is presented with a vacancy in 2020, he needs to make a nomination before the date that the Senate began to propose that there is a “sunset” period to allow the American people to express their preference by way of a vote.
Also, please note that I think this would be a bad rule from the perspective of the courts. This rule increases rather than decreases the politicization of the judiciary, which is bad for the country as a whole. A properly-functioning Senate would fill judicial vacancies promptly regardless of the vicissitude of the political tides.
The Senate, however, is not functioning properly. As we see to no one’s surprise, both parties eagerly treat judicial vacancies as political footballs, and this now threatens to have other deleterious effects upon how Congress works. The filibuster rule ideally serves as a way of requiring broad political consensus, beyond partisan majorities, on important matters and there are precious few more important things on the Senate’s plate than the constituency of the Supreme Court.
So I suggest this rule as a way to prevent further erosion of comity within the Senate, despite the effect it would have on the Federal judiciary.
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