Sen. Tom Udall met with Supreme Court nominee Neil Gorsuch on Monday, but the senator’s mind was still on Merrick Garland.
So the New Mexico Democrat pitched an unusual proposal during his private meeting with President Donald Trump’s nominee: Have both Gorsuch and Garland — whose nomination by Barack Obama was blockaded by Senate Republicans for nearly a year — simultaneously confirmed to the Supreme Court.
“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 following 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.”
This is how Udall described it: Trump would discuss the option with one of the three Supreme Court justices often mentioned as retirement prospects in the coming years – Ruth Bader Ginsburg, Stephen Breyer or Anthony Kennedy – and secure a resignation letter from one of them, contingent on Garland getting nominated and confirmed as their replacement.
Then the two nominees would have a simultaneous confirmation process and votes, Udall said.
Udall’s pitch — which he said he has mentioned to other senators — looks like a pipe dream at best. Trump galvanized the right during his presidential campaign by creating a list of 21 conservative justices who could be potential high court picks. The New York Times reported earlier this month that Trump was already eyeing future Supreme Court replacements in case Kennedy retires, including Sixth Circuit Judge Raymond Kethledge and D.C. Circuit Judge Brett Kavanaugh. Kethledge was on Trump’s list of 21 potential justices, while Kavanaugh is a George W. Bush appointee.
White House officials who accompanied Gorsuch into his meeting with Udall declined to say anything in response to Udall’s suggestion, the senator said.
The senator noted that presidents in the past have coaxed Supreme Court justices to step down from their lifetime appointments, including Arthur Goldberg, who was asked by President Lyndon B. Johnson to resign from the court so he could become the U.S. ambassador to the United Nations.
Udall’s proposal also mirrors an episode from the fifth season of “The West Wing,” when staffers for fictional President Jed Bartlet — faced with a high court vacancy following the death of an associate justice — persuade the show’s chief justice to also resign so Bartlet could announce a pair of nominees who wouldn’t change the ideological balance of the court.
Still, Udall declined to say whether the unusual arrangement would persuade him to vote in favor of Gorsuch.
“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.”
He added: “It’s an idea. It’s just an idea, I threw it out to them, I throw it out to you.”