A Supreme Court vacancy compromise

I know, I know. We don't really do that these days. But here's a possible resolution that two or three Republicans might find difficult to turn down.

I’m no legal expert, and I realize that nobody right now sees the Supreme Court vacancy created by the death of Ruth Bader Ginsburg as an opportunity for compromise. The whole idea of compromise is in very bad odor nowadays, especially with Republicans. But if Democrats are looking to drive a wedge between President Donald Trump and the GOP Senate, they might want to consider the Brennan precedent.

Before delving into the details: Yes, I know, Judiciary Committee Chairman Lindsey “Use My Words Against Me” Graham (R.-S.C.) says he has the votes to confirm Trump’s court choice, even if it’s Jerry Falwell, Jr. Even Sen. Mitt Romney (R.-Utah) now favors a Senate confirmation vote, leaving Sens. Susan Collins (R.-Maine) and Lisa Murkowski (R.-Alaska) the sole public dissenters. The following scenario presumes, perhaps mistakenly, that there are two or three additional Republicans who can be flipped. Even Romney isn’t saying he’ll support the as-yet-unnamed nominee. Yes, it’s improbable. But it’s not impossible, so hear me out.

In September 1956, Supreme Court Associate Justice Sherman Minton announced that he would retire the following month due to ill health. The circumstances were remarkably similar to the current situation. President Dwight Eisenhower was a Republican running for re-election. The Senate was majority Republican. Eisenhower concluded there was no time to confirm a Supreme Court nominee, but he didn’t want to leave the post vacant, either. So he named William Brennan to the high court in a recess appointment. As the Washington Post’s Glenn Kessler noted when reviewing the episode in 2016, “There was little controversy about Eisenhower going forward with a Supreme Court pick even though the election was just weeks away.” Brennan was sworn in on Oct. 16.

(The full story on Brennan’s nomination is related in this paper by Brennan’s biographer, Stephen Wermiel, a former colleague of mine at the Wall Street Journal who now teaches law at American University. See his reply, below.)

Eisenhower won re-election, but the Republicans lost their Senate majority. With the new Congress, Eisenhower was compelled to re-nominate Brennan. The Democratic Senate held confirmation hearings for the sitting justice, and Brennan was confirmed in March 1957. The only vote cast against Brennan was from a Republican, Joe McCarthy (R.-Wisc.), who was angered that Brennan had given a speech condemning anti-communist “witch hunts.” This was three years after McCarthy’s censure, and his influence had hit bottom. Two months later he’d be dead from alcoholism.

If Trump were to make a recess appointment, he would not appoint anyone who remotely resembles Brennan, a Democrat whom Eisenhower nominated because he was under pressure to name a Catholic. Eisenhower, who installed no fewer than five justices on the Supreme Court, came to regret naming Brennan. He found Brennan too liberal, though not as liberal as the Supreme Court appointment he regretted most, Earl Warren. (There’s a bone-chilling story about Eisenhower pulling Warren aside in 1954, while the court was considering Brown vs. Board of Education, and saying of white parents in the South, “These are not bad people. All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big black bucks.”)

Trump’s recess appointment would most definitely not be a William Brennan type. And if the 2020 election were to end up in the Supreme Court, that recess appointee would feel uniquely dependent on Trump’s re-election (and good will) to stay there. That’s what Republican would gain. Maybe that’s too much.

But what Democrats would gain is the opportunity to eject Trump’s recess appointment if they regain the Senate, or if Joe Biden is elected president, or both. And also an opportunity to taunt Republicans that if they reject this deal they’ll as much as be admitting they expect to get their asses kicked.

Obviously it would be preferable for Democrats to block any Supreme Court nomination. As I point out in a new piece for the New Republic, more than half the states will have begun voting by Friday, when Trump says he’ll announce his nominee; two dozen states are voting already. It really is insane to move on a Supreme Court nomination quite literally during a presidential election. And my friend Michael McGough points out that the Brennan appointment (and a second recess appointment two years later for Potter Stewart) left a sufficiently bad taste that the Senate passed a resolution in 1960 saying such recess appointments shouldn’t be attempted again “except under unusual circumstances and for the purpose of preventing or ending a demonstrable breakdown in the administration of the Court's business,” whatever that means.

But it’s time to consider a hail-Mary pass. Granted, Eisenhower is not beloved by contemporary conservatives—the movement conservatism from which today’s Republican ideology is descended was founded in conscious opposition to Eisenhower’s “modern Republicanism.” But surely there’s a Republican senator here or there who reveres Eisenhower. The guy has a memorial now in Washington, designed by Frank Gehry, that opened just last week. He won World War II, for Christ’s sake. And in spite of that racist thing he said to Warren, his memory commands bipartisan respect. It’s worth a try.