When Donald Trump was elected president, it looked like the end of the road for Judge Merrick Garland, then-President Barack Obama’s nominee for the Supreme Court.
Not so fast, one Democratic senator with a long-shot plan insisted Monday.
After meeting with Judge Neil Gorsuch, President Trump’s Supreme Court nominee, Sen. Tom Udall (D-N.M.) told reporters that if Trump wants to a unite a country that is sharply divided over the court’s future, there’s a way do that: Put both Gorsuch and Garland on the court at the same time in a compromise that would make both Democrats and Republicans happy.
“Have a simultaneous vote, have a simultaneous process,” explained Udall.
So how would it work, exactly? Udall said it would begin with Trump visiting privately with current justices mulling retirement.
“If one of those judges decided that they would be willing to retire … and would agree to that, then what they would do is submit a resignation contingent upon the approval of Merrick Garland as their replacement,” Udall explained.
He said if that happens, both Gorsuch and Garland could be confirmed by the Senate in bipartisan fashion.
“That’s, to me, presidential leadership,” he added.
Garland’s nomination to fill the seat of late Justice Antonin Scalia stalled last year as Senate Republicans said they did not want a nomination fight in an election year. Their gamble: that punting the process until after the election would raise the possibility of putting a conservative justice on the court.
When Trump won, their bet paid off. The president nominated Gorsuch this year and won widespread praise from conservatives for doing so.
Udall said he brought up his idea in his meeting with Gorsuch but told the judge that he did not have to respond. He said it he raised it mainly to put the idea in the heads of the aides who were with Gorsuch. The senator said they didn’t offer a response.
Udall said he has not raised the idea with Garland. The White House did not immediately comment on Monday.
The senator said he has no inside information about potential court retirements, but, “there are a lot of rumors to that affect.”
The three oldest justices on the court are seen by conservatives as too liberal: Ruth Bader Ginsburg, 83; Anthony M. Kennedy, 80, who is seen as a swing vote; and Stephen G. Breyer, 78.
Udall is not the only senator who is speculating publicly about court retirements. Sen. Ted Cruz (R-Tex.) predicted last week that there would be a second vacancy on the court this summer. He did not elaborate on why he thinks that will happen.
Republican leaders are hopeful they can get enough crossover votes to break the Democratic resistance to Gorsuch’s nomination. So at this point at least, there is little incentive for them to make a much bigger concession.
And if Trump were to agree to a deal involving Garland, it would likely enrage conservative activists who are eager to make the court more conservative at a time when Republicans control both chambers of Congress and the White House.
Udall said he has discussed his plan with some other senators. But he declined to characterize the response he has gotten.
Gorsuch’s confirmation hearings before the Senate Judiciary Committee will begin March 20.
As some people pointed out on social media, the plan resembles an episode of the TV show “The West Wing.” Udall seemed to acknowledge that his plan likely faces long odds.
“It’s just an idea,” he said.