As partisans clash over President Trump’s pronouncement that he will quickly nominate a justice to the U.S. Supreme Court to replace Ruth Bader Ginsburg, there is a reasonable compromise available that could avert what many see as an inevitable bloodbath. In brief, Trump could use his recess appointment power to place on the Supreme Court a temporary replacement for Ginsburg, with the understanding that if re-elected, he would put forward that person for consideration, and certain confirmation, for the full appointment.
Doing so would secure, albeit for the short term, a 6-3 conservative majority for the Republicans, but it would also ensure for Democrats that Trump, if defeated in the upcoming presidential election, will not permanently impact the court’s makeup. It is a leave-it-to-the voters deal that ensures each side gets to play to its own strength politically on the issue of court appointments during the campaign while the country has a healthy debate rather than a bitter conflict that further divides us.
There is precedent for a president to make a recess appointment this close to a presidential election. In October 1956, President Dwight D. Eisenhower appointed William Brennan to the Supreme Court during an October recess of the Senate. Doing so placed Brennan temporarily on the Supreme Court with a permanent nomination and confirmation coming the next year, after Eisenhower was reelected. Had Ike lost, Democratic opponent Adlai Stevenson would have had the opportunity to appoint a different justice to the court.
This sort of action today may be the only way to prevent a high-stakes confirmation battle right before the presidential election. From the Republicans’ standpoint, it would likely mitigate the massive galvanizing of Democrats and their liberal base that will certainly happen under the current scenario of Trump and Senate Republicans moving quickly to ram through a nomination.
Although Trump would get a short-term victory of making an interim Supreme Court appointment, Democrats would be assured that Trump’s pick would only serve until the end of the next session of Congress, or when a successful nomination is confirmed (whichever comes first). Likewise, Democrats would enter into the compromise agreement knowing that right now their presidential nominee, Joe Biden, leads Trump in most national and key state polls and is favored to win the election. In addition, many political observers give Democrats a strong chance to take back the Senate. As a result, Democrats would be in a position to not only control the presidency, but also the Senate.
Democrats would be misguided to not take this compromise, if offered. The question is, would Trump and Senate Republicans do so? As one high-level Senate Republican staffer said, “I think a 6-3 court is worth the White House and Senate.” That suggests a zero-sum battle is coming, with all of the intensified conflict and anger on both sides. We think that is a bad deal not only for the country, but for the interests of the parties’ nominees who cannot know how the political winds will blow most strongly in a campaign with one issue dominating in the race to the finish.
Eisenhower and his Democratic opponents knew a better way, and it worked. By stating their hesitancy to vote for a permanent, not interim, appointee before the election, fewer than a handful of Senate Republicans could make this happen. It would sure save the country a lot of turmoil.
Sollenberger, author of the book “The President Shall Nominate,” is professor of political science at University of Michigan-Dearborn. Rozell, author of the book “Executive Privilege,” is dean of the Schar School of Policy and Government at George Mason University.
