A good-faith GOP compromise on filling Scalia’s seat

Since the passing of Supreme Court Justice Antonin Scalia last week, the nation’s political class has been riveted by the question of whether President Obama should nominate a replacement for the seat in his last year in office, and whether the GOP should hold an up-or-down vote on any such nominee before the November election.

{mosads}Both sides have dug in their positions, with the president reminding Republicans that “the Constitution is pretty clear about what’s supposed to happen now,” and that he is “going to present somebody who indisputably is qualified for the seat and any fair-minded person, even somebody who disagreed with my politics, would say would serve with honor and integrity on the court.”

For their part, Senate Republicans under Majority Leader Mitch McConnell (Ky.) have ruled out consideration of any nominee in the remainder of the president’s term, arguing that the American people deserve to have a voice in the ultimate balance on the court through their presidential vote this fall.

Republicans also point out that, with Republican President George W. Bush in the White House in 2007, Democratic Sen. Chuck Schumer (N.Y.) essentially promised to block almost any nominee that the president might have made if a vacancy had arisen on the liberal side of the court in that president’s final year in office.

With respect to late-term nominations, both sides invoke historical precedent to buttress their case. Republicans point to the withdrawal by President Lyndon Johnson of Abe Fortas’s controversial nomination in the waning months of his presidency in 1968, while Democrats note that lame-duck presidents have nominated justices to the court on at least three other occasions in their final year in office and the Senate considered and confirmed them all three times.

Republicans would argue that none of these successful end-of-term nominations — under Presidents John Adams, John Tyler and Rutherford B. Hayes — promised to tip a close ideological balance on the high court at a time when so many issues of social and economic importance are being decided by the court.

That said, the politics of the nomination clearly favor the president, not Senate Republicans. True, both sides have partisan audiences who will applaud a hardline approach. The wider, national electorate, however, is unlikely to look with favor on Republicans if they flatly refuse to move forward on any nominee the president proposes, sight unseen. Even though Schumer threatened to block Bush’s nominees in his last year in office, intransigence will be more damaging in the face of a real nominating choice.

And the political risk is clear for Republicans in an election year when control of the White House as well as the Senate hangs in the balance. As some have suggested, Obama could put the heat on the eventual Republican nominee in swing states by proposing a candidate who wins respect from minority voters, such as Attorney General Loretta Lynch, who would be the first African American woman on the court, or California Supreme Court Justice Tino Cuéllar, who would be the first Latino man on the court.

The risks would be especially high for vulnerable swing-state Republican senators such as Kelly Ayotte of New Hampshire, Rob Portman of Ohio, Mark Kirk of Illinois or Ron Johnson of Wisconsin, who face reelection this year. Republican defeats in these races could tip the balance of the Senate, where Democrats need only five seats to regain the majority, and a battle over the court would add stiff headwinds to Republican chances.

Sensing a steep political climb ahead, some Republican senators are already looking for an off-ramp. Senate Judiciary Committee Chairman Charles Grassley of Iowa and both Ron Johnson and freshman Judiciary Committee member Thom Tillis of North Carolina are signaling that they might be open to confirmation hearings on a nominee depending on the circumstances.

Yet this remains far from a groundswell, and McConnell clearly has the votes to prevent consideration of any nominee on the Senate floor, irrespective of the Judiciary Committee’s wishes. He has Republican base voters behind him.

Is there a way for Republicans to finesse the politics of an impending impasse? A possible way forward would be to invite the president to fill the vacant seat quickly — but temporarily. Here is how the proposal might work.

The president would nominate a caretaker justice who maintains the 5-4 conservative-liberal balance that existed on the court prior to Scalia’s passing. The next president then would choose a permanent replacement promptly upon assuming office on Jan. 20, 2017.

In this scenario, Senate Republicans would declare a recess upon returning next week. (The court’s 2014 decision in National Labor Relations Board v. Noel Canning clarifies, and expands, the Senate’s power to do so). They then would invite the president to make a recess appointment of a moderate Republican — such as former Solicitor General Ted Olson — who would give the court a full bench of nine Justices by the end of February, subject to Article II, Section 2, of the Constitution, that says such appointments last only until the end of the Senate’s next session. The new appointee therefore would serve for a time-limited term.

This would enable the court to move forward under a similar political balance as the status quo ante and to consider upcoming cases with a full bench. At the same time, it would leave the choice of a permanent nominee to the next president — thereby giving the voters a say in a decision that likely will have an impact on the nation’s law for a generation to come.

This course of action would clearly face opposition from Democrats, as it would not only deny them a political weapon in an election year; it would also inflame their base, which is excited by the prospect of Obama placing a lasting liberal stamp on the court.

However, offering such a compromise would extricate Republicans from the situation they presently face, where an absolute refusal to fill the vacant seat makes them appear unreasonable to some swing voters, but where an acceptance of a permanent Obama nominee would be a costly concession.

As a balanced alternative, a temporary caretaker justice would demonstrate Senate Republicans’ willingness to make sensible accommodations, while at the same time challenging Democrats to respect the will of the electorate.

Ullyot is a Republican strategist and former longtime senior adviser to Senate Republicans. Grant is a senior research fellow at Cambridge University.