This guy understands that Trump has a base of his own to please and that that base would be ready to tar and feather him if he agreed to a proposal this stupid, yes? If so, what’s the point of floating it?
Ah, I see. Apparently this was the plot of an old episode of “The West Wing.” No foolin’: Democrats are so far from actual power right now, they’re cribbing ideas from Aaron Sorkin to try to manufacture drama.
“You had President Trump saying, ‘I want to unite the country, I’m a deal-maker, I’m going to bring people together,’” Udall told reporters following his meeting with Gorsuch on Monday. “Well, the deal right now for President Trump, if he wanted to do it, would be to put Gorsuch and Merrick Garland on the court at the same time.”
This is how Udall described it: Trump would discuss the option with one of the three Supreme Court justices often mentioned as retirement prospects in the coming years – Ruth Bader Ginsburg, Stephen Breyer or Anthony Kennedy – and secure a resignation letter from one of them, contingent on Garland getting nominated and confirmed as their replacement.
Then the two nominees would have a simultaneous confirmation process and votes, Udall said.
Udall’s spokesman swears that he didn’t get the idea from “The West Wing,” an even more frightening prospect in that it suggests Democrats are starting to think like Sorkin independently. Anyway: In what alternate dimension does this plan benefit Trump? What incentive does he have to compromise? In the “West Wing” episode, a Democratic president was facing the dilemma of trying to get a liberal justice confirmed by a Republican Senate; agreeing to appoint a young conservative to a second vacant seat was his solution. Trump doesn’t have that problem. If Democrats vote as a bloc against Gorsuch or a future nominee, McConnell has the nuclear option in his back pocket. Only if there are three Republicans in the Senate who are committed to not using that option under any circumstances does Trump have an issue. And that’s unlikely.
So he holds all the cards. He can wait out Ginsburg, Breyer, and Kennedy over the next four years and simply appoint a conservative to replace them when they retire or die. Even if all of them stay put, replacing Ginsburg or Breyer with the much younger Garland would be foolish in that it would extend liberals’ ownership of that seat on the Court for another decade or two (or conceivably even three). Replacing Kennedy with Garland, as Udall insanely imagines, would actually create a liberal majority, something that would cause Trump’s right-wing support to collapse. Whether Ginsburg or Breyer would even agree to retire with the promise that they’d be replaced by Garland is another question, and not an unimportant one. Imagine if Trump sounded them out about that and got rejected — and the proposal leaked. Trump’s base would revolt and he’d have nothing to show for it.
You could try to cobble together an argument here, a la Udall, that appointing Garland would help Trump “unite the country” by throwing Democrats a bone, but (a) there are less costly ways to do that than by giving away a prized Supreme Court seat and (b) the number of Democratic voters so impressed by Trump’s gesture that they’d be willing to support him in 2020 because of it is almost certainly less than the number of Republican voters who’d consider him a sellout and vow never to vote for him again. Right now the only reason his job approval is as high as 44 percent is because Republicans almost unanimously support him. Put a crack in that support with no guarantee of an upswell of support on the other side and suddenly he’s in the 30s and his political capital is on fire. It’d be suicide with so many of his major proposals still unpassed.
The only other conceivable reason to do this is that Garland is more of a centrist than Ginsburg or Breyer, so replacing either of them with him would move the Court a bit right on balance. But why play small ball when you have an opportunity to put an actual conservative in one of those seats instead by being patient? The only way it would make sense to consider Garland, I think, is towards the end of Trump’s term, if his job approval had cratered and he seemed a cinch to be a one-term president. At the point, arguably, the wise thing to do would be to replace one of them with the least radical Democratic judge available. But even then, it wouldn’t happen. Trump wouldn’t concede the imminent fact of his own electoral defeat by agreeing to appoint Garland in a pander to Democrats. And on the off-chance that he wanted to, the Republican Senate would never confirm him or they’d face a base revolt of their own. The Garland scenario makes sense only as part of a package deal with a conservative justice. And, as I’ve explained, it doesn’t make sense even then.