WASHINGTON — Sen. Tom Udall on Monday floated a novel idea to fill empty seats on the U.S. Supreme Court while possibly avoiding a partisan fight and burnishing President Donald Trump’s reputation at the same time: Let the Senate confirm both Merrick Garland and Neil Gorsuch simultaneously.
Udall and other Democrats, still smarting over the Republican-controlled Senate’s refusal last term to consider President Obama’s nomination of Garland, of the District of Columbia Circuit, would still like to see the U.S. Appeals Court judge sitting on the Supreme Court.
But Trump instead shelved Obama’s nomination of Garland and selected Gorsuch of the 10th Circuit, which includes New Mexico, for the vacancy left by the death of Justice Antonin Scalia last year.
After a private meeting with Gorsuch on Monday, Udall explained how his proposal would work, considering there is currently just one vacancy on the Supreme Court.
He said Trump could confer with each of the three Supreme Court justices most likely to retire — Ruth Bader Ginsburg, Anthony Kennedy and Stephen Breyer — and after learning of their plans, ask one of them to submit a resignation contingent on Garland’s nomination and confirmation as a replacement.
“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 after 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.”
Udall said the two men would undergo simultaneous confirmation hearings and Senate votes.
Of course, the idea is a long shot, to say the least. Trump is unlikely to offer to nominate a left-leaning Obama pick for the court, especially when Republicans control the Senate.
Udall, a former New Mexico attorney general, said he has discussed the idea with some Senate colleagues, but that White House officials who accompanied Gorsuch into his meeting didn’t respond Monday when he mentioned the idea.
“It’s an idea — it’s just an idea,” Udall told reporters Monday. “I threw it out to them; I throw it out to you.”
Social media quickly noted that the idea mirrors a plotline from the television show “The West Wing.” In that show’s fifth season, staffers for Josiah Bartlett, the fictional president portrayed by Martin Sheen, proposed having the president nominate two Supreme Court nominees after a death of an associate justice. The idea was that Bartlett would persuade the court’s chief justice to resign so he could appoint two justices who would maintain the balance of the court.
The Republican Party of New Mexico did not find much merit in Udall’s proposal.
“While Sen. Udall wastes his time writing “West Wing” fan-fiction, we just had an election that was largely decided on the issue of filling the open seat on the Supreme Court,” said New Mexico party spokesman Tucker Keene. “The people elected President Trump because they wanted him, not Martin Sheen, to fill Scalia’s seat, and he has done so with the laudable pick of Judge Neil Gorsuch. Sen. Udall needs to return to reality, respect the will of the voters and vote to confirm Trump’s impeccably credentialed nominee.”
A spokeswoman for Udall said the New Mexico Democrat did not get the idea from the former hit TV show and said he was only an occasional watcher of the program.
Meanwhile, Udall has not said how he intends to vote on the Gorsuch nomination and would not say whether he would support him even if Trump unexpectedly took him up on his proposal.
“I’m going to do the same thing I’m going to do with this nomination and whatever nomination comes before us,” Udall said. “You’d still have the same review of the other nominations. The key to the whole thing … you wouldn’t want one side to back out of it.”
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