A modest proposal on SCOTUS (more ‘West Wing’ than ‘House of Cards’) (opinion)

 A modest proposal on SCOTUS (more ‘West Wing’ than ‘House of Cards’) (opinion)

If the Democrats win the presidency and control of the Senate (and polls suggest they have a chance) they might respond by adding more justices to the Supreme Court. They could also eliminate the filibuster rule in the Senate, which would allow Congress to grant statehood to the District of Columbia, Puerto Rico and any other territory likely to elect Democrats — effectively “packing the Senate,” too.
All of this would be constitutionally permissible, as was Republican Sen. Mitch McConnell’s decision to hold a hearing for Judge Barrett, while in 2016 denying one to Merrick Garland, former President Barack Obama’s pick to fill the late Justice Antonin Scalia’s seat. There is talk among Democrats of doing to Republicans what the GOP did to Democrats.

But that is the political equivalent of Old Testament justice, an eye for an eye. It is not how great democracies govern themselves. Both political parties are thinking tactically at a time when we need a strategy for rebuilding a governing coalition capable of passing legislation without using a narrow majority to bludgeon the other side into submission.

There is an elegant path forward here, if six brave senators from each side of the aisle are willing to sign on to it. It would go like this:

Twelve senators — six Republicans and six Democrats (not at risk of losing their seats in November) — would make the following deal: The Republicans would agree to postpone a Senate vote on Barrett until after the presidential election.

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If President Trump is reelected, the nomination would go forward immediately, before the new Senate is seated. If he is defeated, Joe Biden would be allowed to nominate the next justice when he takes office.

In exchange, the Democrats would pledge to preserve the filibuster if they win control of the Senate in November. The Senate makes its own rules at the beginning of each term. The filibuster is a rule requiring 60 votes to pass legislation or confirm judges rather than a simple majority.

We realize that what we are proposing is more “West Wing” than “House of Cards” –a small group of senators, sharing some bond of residual trust and coming to the conclusion that it’s time for the Senate to step up, joining forces to change the trajectory of American politics. But it’s what the times demand. The degree of partisanship and political dysfunction is unique since the Civil War. Our response has to be on the same scale, as if we were repelling a foreign threat. This is the stuff history is made of.

Both sides would be giving up something big in the near term under such an agreement. The Republicans would be risking control of a Supreme Court seat. The Democrats could potentially be giving up the power to govern without any check by the Republicans.

But what the country would gain is much, much bigger. First, such a move would put a halt to what has become a disabling battle of procedural tit-for-tat.

The answer to America’s governance challenges is not an 11-person Supreme Court (or a 13-person court if the Republicans regain power and engage in retaliatory court-packing). Rather, we need a degree of trust, cooperation and respect that will allow the institutions we have to begin working more effectively.

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Second, the filibuster, used properly, is an essential procedural safeguard. It is the most significant institution in our constitutional structure that gives influence to the legislative minority. The framers of the Constitution were acutely aware of the dangers of majority rule. The filibuster was designed explicitly to promote deliberation over expediency.

Third, the 12 senators who strike this deal could become the anchor of a bipartisan coalition committed to digging us out of the current partisan morass. Our government works best when the Senate works well. And the Senate works best when bipartisan coalitions form in the center and build out from there.

Our proposed deal among senators would require respect, trust, and vision — attributes that have historically been the bedrock of an effective US Senate. We are confident that there are many senators capable of stepping up to play this role.

The alternative is a cold civil war in which America’s two parties engage in political trench warfare while our most significant challenges go unaddressed, from the economic toll of Covid to our mounting debt to an increasingly aggressive China.

What is happening right now in Washington is much bigger than one Supreme Court justice, or even one election. The possible outcomes are stark. We can recapture our ability to meld diverse ideologies into a shared path forward. Or, we can devolve further into a country of warring tribes.

American history is replete with examples of senators acting bravely for the sake of the country. Now would be a good time for it to happen again.

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