The Supreme Court nomination process and consultation

Last week, Supreme Court Justice Anthony Kennedy announced his retirement after three decades of dedicated service on the highest court in the land. President Donald Trump praised Kennedy as a wonderful Justice and pledged to nominate a successor who would honor Kennedy’s powerful legacy. On Friday, the president stated that he would interview this week five to seven candidates from a list of twenty-five prospects, which the Federalist Society and the Heritage Foundation compiled, and announce a nominee on Monday, July 9. The best way that Trump can discharge his constitutional responsibility for selecting the finest nominee is to institute a transparent process in which the White House assiduously consults with Democratic senators, who must fulfill their constitutional duty to provide advice and consent.

Strident partisanship, divisive rhetoric and incessant “paybacks” have marked the confirmation process for justices ever since the 1987 Senate rejection of Circuit Judge Robert Bork, President Ronald Reagan’s Supreme Court nominee. However, there was an important exception to this downward spiraling process. During 1993 and 1994, President Bill Clinton and Senate Judiciary Committee Chairman Orrin Hatch (R-Utah) engaged in frank consultation, which prompted the nomination of D.C. Circuit Judge Ruth Bader Ginsberg and First Circuit Judge Stephen Breyer, both of whom the Senate expeditiously and smoothly confirmed by overwhelming votes of 96-3 and 87-9 respectively.

{mosads}President Trump can easily implement consultation. For example, last week, the chief executive discussed the nomination and confirmation processes with Senate Judiciary Committee Chair Chuck Grassley (R-Iowa) as well as Sens. Susan Collins (R-Maine), Lisa Murkowski (R-Alaska), Joe Donnelly (D-Ind.), Heidi Heitkamp (D-N.D.) and Joe Manchin (D-W.Va.). This was productive, because Grassley will lead Senate consideration of the nominee, while many observers believe that the other five senators have not decided how they might vote on the nominee.

The president should now expand that process of consultation to include Sen. Chuck Schumer (D-N.Y.), the minority leader, and Sen. Dianne Feinstein (D-Calif.), the Judiciary Committee ranking member. Trump and these leaders should discuss how to implement smooth nomination and confirmation processes and potential candidates to ascertain whether they can reach agreement on the process and the specific nominee.

President Trump and Senate Democratic leaders must engage in candid, collegial discussion about how to improve the process and how to select the best nominee for the Supreme Court and the American people at this moment in the history of the court and the Republic. The president and the Democratic leaders should implement this approach, because it promises to enhance the process and the quality of the nominee selected. Even if consultative engagement does not yield complete agreement, it may well improve the procedures employed and the nominee tapped as well as communication between the president and Democratic leaders at minimal expense in terms of resource commitment.

President Trump has pledged to nominate and confirm a replacement for Justice Kennedy who will respect and carry on his legacy. The chief executive can best attain this goal by assertively consulting, which will enhance the process deployed and the nominee chosen.

Carl Tobias is the Williams Chair in Law at the University of Richmond.