Let Obama have his Supreme Court justice, in exchange for tax reform

Politicians feign embracing their philosophical beliefs and the bedrock principles of democracy only when convenient to do so, and the recent rhetoric of both political parties on the appointment of the next Supreme Court justice has lived up to this truism. No one doubts that if the two party’s positions were reversed, each party would deftly assume the position that their opposition holds today.

{mosads}Once we acknowledge that the battle over Merrick Garland’s appointment is merely a political one and not a drop-down war over the senatorial duties set forth in the Constitution, we can begin to discuss the terms by which the two parties might reach some sort of agreement. Republicans should agree to vote Garland to the Supreme Court in exchange for President Obama signing a tax reform bill.

Tax reform has been the Republican Congress’s top legislative priority since it regained the House in 2011 (notwithstanding the perpetual battle over repealing ObamaCare, which will never happen as long as Democrats control one branch of government).

But tax reform could happen this year — if it weren’t for Obama’s refusal to seriously engage in the matter, it might already be done. There are some broad principles that a majority of congressional Republicans and Democrats can agree on, and an engaged White House with some modicum of political motivation to get a deal done could help achieve a tax reform that liberals could embrace while concomitantly getting something else out of the deal — something like a Supreme Court justice.

The White House has too many red lines drawn at the moment that make tax reform impossible: For instance, it refuses to allow top tax rates on individuals and small businesses to be reduced, or for the corporate rate to go down more than 7 percentage points, or for any version of an IP (intellectual property) box to be implemented. And it demands that any reform raise more money over the next decade, too, which is a gigantic barrier to any reform that would boost economic growth.

Republicans could offer to approve Garland in exchange for the White House tacitly dropping two or three of these objections. The demand to raise revenue should be one of them, but I could live with any of the other three (although it probably makes the most sense for Republicans to ask for an IP box, which would be a relatively inexpensive way to make U.S. corporations more competitive).

Republicans have little to lose from such a transaction: Neither Republican presidential candidates Donald Trump nor Sen. Ted Cruz (Texas) would be favored against likely Democratic nominee Hillary Clinton, and The Donald’s as likely to pick Judge Judy as he is a strict constructionist. If Republicans want to wait until the outcome of the general election, that would be fine, as well — but by that time, the Democrats in the Senate will be less willing to cut a deal.

And while Obama may have already resolved to merely make the Supreme Court justice a political cudgel with which to bash obstinate Republicans, I believe that he places a value on getting his justice seated that goes beyond just the political or policy gains. This president is the most accomplished writer to hold the office since Abraham Lincoln (John Kennedy gets no credit for his ghostwritten book) and I think that because of that, he places more of an emphasis on creating a narrative for his tenure than have other presidents. One narrative that would appeal to the former constitutional law professor at the University of Chicago would be to transform the Supreme Court in a way that it is more amenable to his party and its principles. A President Hillary Clinton would no doubt select someone just as liberal as Garland, if not more so, but it wouldn’t be a part of Barack Obama’s narrative.

Nothing transcends politics in the most political body in the world, and pretending otherwise won’t change it. Republicans should accept the Garland appointment as the best that we will see and go along with it — for an acceptable price.

Brannon is president of Capital Policy Analytics, a consulting firm in Washington.