President, Democrats should seal a deal: Trade the wall for Merrick Garland on the Supreme Court by Clarence Schwab
https://thehill.com/opinion/judiciary/412683-president-democrats-should-seal-a-deal-trade-the-wall-for-merrick-garland
Donald Trump has won big with Supreme Court Justices Neil Gorsuch and Brett Kavanaugh. He also is leaving his imprint on the lower courts. These results are paying real-world political dividends, as Republicans appear poised to keep control of the Senate. This is the moment for President Trump to win big with “The Wall” along our southern border.
Yet, with Democrats about to take control of the House, the wall will likely be as real as Merrick Garland on the Supreme Court, without some Democratic support.
President Trump should start thinking about making a deal, and the next Supreme Court seat vacated by a liberal justice may be just the pressure point. How about offering assurances to Senate Democrats that Judge Garland, the stalled Supreme Court nominee of the Obama administration, would fill the next seat vacated by a liberal justice, in return for full funding of a “big and beautiful wall”?
The last time the wall was part of a possible deal, the price was DACA, and ultimately the GOP and White House balked. But offering to trade the wall for Merrick Garland, with a Supreme Court firmly in conservative control, leaves the Trump political base with little to lose.
In fact, the House Republicans’ Freedom Caucus would have plenty to cheer about. Rank-and-file Republicans could sleep easier at night knowing that the southern border was safer. Like the president, Senate Republicans have some room to give, and the president could smile because he didn’t have to give anything on immigration to get the wall.
As for the 2020 re-election, such a trade would highlight Trump’s political deal-making prowess, and show him to be capable of compromise. For Independents, that could ease doubts about the president’s capacity to govern effectively. It could increase Trump’s chances of getting their votes and, in so doing, of maybe winning the popular vote.
To be sure, the Federalist Society may oppose this proposal. But the Federalists would still get to name every other appointment to the federal bench while Trump remains as president. And, lest anyone forget, Trump’s brand is on the ballot, not theirs.
So, how might congressional Democrats react?
Senate Democrats should be elated by this proposal, as they can save a 5-4 Court, a political win for a party that does not control the Senate or the presidency – especially because a 6-3 Court could more easily decide in favor of harmful Trump administration immigration-, minority-, woman- and environmental-related actions and orders.
Failure to accept the deal would guarantee that an out-going liberal Justice would be replaced with a young Federalist Society-approved conservative who could serve for the next 30 years, spanning the next eight presidential elections.
House Democrats would likely be more divided.
House Democrats have acknowledged the need for improved security on the southern border and already, in January 2018, offered to fund improvements to security there, including for physical barriers.
But some House Democrats have to face the fact that Trump and the GOP walked away from exchanging a deal on DACA for The Wall — and that saving a 5-4 Court, not DACA, is what’s on the table now.
Moderate and conservative House Democrats inclined to support securing Judge Garland’s confirmation might face blowback from their own party in 2020 for doing so. They could push back convincingly by arguing that in supporting the Garland deal, they stood up to protect immigrants, minorities, women and the environment from a 6-3 Court.
These House Democrats, coming from swing districts, would also impress Independents and others, making their next general election more secure – because they also stood up to safeguard the effectiveness of the judicial branch whose purpose, in part, is to check the power of the presidency. A 5-4 Court would very likely overturn and stop unconstitutional executive actions or orders.
If House Democrats — who seem about to take control of that chamber — ultimately accept the president’s offer, they would show Independent voters that they can compromise and govern effectively.
Notwithstanding the above, Senate Minority Leader Charles Schumer (D-N.Y.) and a prospective Democratic House Speaker might still reject the president’s offer. They might argue that Republicans are weak politically and must select a non-conservative jurist to safeguard Republican 2020 prospects — or argue that a vacancy on the court might not occur within the next two years. And they could speculate that citizens will remain angry enough to vote out of office a sitting president and a Republican-controlled Senate.
On the other hand, Sen. Schumer and a prospective Democratic House Speaker might, instead, consider that the outcome of the 2020 election is by no means assured. With the president’s commitment in place, a liberal justice may want to retire soon, comfortable in the knowledge that Judge Garland would be confirmed — and that, by rejecting such a commitment, they might hurt their party’s 2020 prospects.
In return for legislation binding the Senate to confirm, and a legally enforceable agreement by the president to nominate Judge Garland over the next two years, congressional Democratic leaders could agree to pass border security appropriations — including the prompt and full funding of all costs related to physical barriers where needed on the southern border — and to support that legislation in the Senate.
Not only could the president, with congressional Republicans and Democrats, secure our southern border for every American’s benefit, together they could act in defense of our great institutions. Even domestic opponents would have to respect, and might even join in, such an effort.
Clarence Schwab is a registered Independent and founder and managing partner of Schwab Capital Management, an investment and advisory firm focused on publicly traded and smaller privately held companies. Follow him on Twitter @schwab_clarence.
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