A leftover from yesterday that made me laugh. In fairness, Schultz himself probably doesn’t take this seriously. It’s just a Big Bold Idea he’s tossing out to try to get centrist voters’ attention. Centrists like the idea of compromise, right? They want more comity and less partisanship in Washington, yes?
Well, then, that’s what President Schultz will deliver. He’s going to hunt around and find judges so well-respected and non-ideological that a supermajority of our very fractious, partisan Senate will be stirred to push his nominees through.
Just one problem, notes Benjy Sarlin. What incentive would either party have to do that for him?
You remember what happened next: A total blockade on even considering the pick. The issue wasn’t “two extremes,” it was that there’s a huge partisan advantage in keeping the court seat open and then trying to win the next election that the GOP recognized and took.
— Benjy Sarlin (@BenjySarlin) March 13, 2019
In theory, you could find that one pick they both feel comfortable approving. But that pick doesn’t exist, especially as the federal judiciary gets more and more overtly politicized. Again, see Garland, Merrick. So it’s effectively a campaign promise not to pick SCOTUS judges.
— Benjy Sarlin (@BenjySarlin) March 13, 2019
Hold the seat open and gamble that President Schultz won’t be able to replicate his historic 2020 win in 2024. Whichever party replaces him in the White House gets to fill the vacancy itself.
There are other problems. There’s no such thing as a perfectly centrist SCOTUS nominee. Any nominee will probably tilt a bit right or a bit left on most issues, and that tilt will be enough to alienate the other party. A nominee with a very heterodox jurisprudence, with a rightward lean in some areas and a leftward lean in others, would probably alienate both parties as activists in each side’s base point to their “bad” rulings as evidence that he or she is terrible. Plus, how would Schultz’s two-thirds mechanism work in practice? He would refuse to nominate someone unless and until he had commitments in advance from 67 senators that they’d vote to confirm? How could they promise that before a confirmation hearing was held and they’d had a chance to vet the nominee?
Is Schultz suggesting that he’d yank a nominee *after* the confirmation hearing, even if he or she has 51+ votes in the bank, because the 67-vote threshold hasn’t been met? Because he wouldn’t, I promise.
I’m not as cynical as Sarlin in thinking confirmation is impossible, though. It would depend partly on timing. The earlier a vacancy opened up in Schultz’s term, the more pressure the Senate would feel to confirm someone. Holding a seat open for nine months is different from holding it open for three and a half years. Schultz would enjoy a honeymoon period early in his term too for having made history as a victorious independent candidate and the two parties would be more willing to play nice with him while it lasted. His mandate would be “more bipartisanship”; some soft ideologues on either side of the aisle would heed that. Doubtless a new Gang of 14 or whatever would spring up to advise him on nominees who might prove agreeable to both parties, a sort of second Senate Judiciary Committee.
But are there really 67 senators willing to compromise on anything? To believe that you need to believe that there are no more than 16-17 people on each side who are not fiercely ideological *and* not beholden to a fiercely ideological statewide electorate that would require them to oppose Schultz’s squishy nominee even if they were inclined to vote yes. Even if someone like a Dianne Feinstein wanted to support Schultz’s centrist nominee, she would know that Californians would run her out of town if she did. A senator from a swing state like Cory Gardner also might blanch at the idea, not because he feared losing the general election but because he feared a primary. (That’s why he voted with Trump on today’s border emergency, after all.) How do you get to 67 in a country when the bases of both sides are engaged in ferocious unending ideological warfare?
Another way of asking that question, I suppose, is “How does Howard Schultz get to 270 electoral votes?”
Anyway, enough of this silly thought experiment.
Howard Schultz: “I would not nominate a Supreme Court justice unless he or she could be confirmed by two-thirds—two-thirds—of the United States Senate.” https://t.co/NkJuIoh4fP pic.twitter.com/wgic1BSmZm
— ABC News (@ABC) March 13, 2019