Supreme Court is facing a constitutional crisis

Without issuing an opinion — no ruling on school desegregation, no decision on abortion rights — the Supreme Court is at the center of perhaps its gravest constitutional crisis in eight decades.

The stakes could not be higher, the implications could not be greater, the consequences could not be more far-reaching.

In the span of a few months the country has witnessed the high court nomination of a supremely competent jurist, Judge Merrick B. Garland, be ignored by a stubborn Republican-controlled Senate, followed by the prospect that another supremely competent jurist, Judge Neil Gorsuch, might be blocked by a recalcitrant Democratic minority; and, just the other day, a blistering critique of judges by the president followed by Judge Gorsuch’s comment that the Trump remarks were “disheartening.”

This whole contretemps is a substantial departure from American history. A Ronald Reagan appointee, Anthony Kennedy, won confirmation by a 97-0 vote. Two of Republican George H.W. Bush’s nominees were confirmed by a Democratic Senate, once by a 90-9 vote (David H. Souter).

But last year Republicans refused even to take up the nomination of Garland, and now Democrats are threatening to return the favor and stall, if not defeat, the nomination of Judge Gorsuch.

“Now no one from the other party is acceptable,” says Dan Urman, who directs the law and public policy program at Northeastern University. “This is the political equivalent of the Hatfields and McCoys. Each side wants to get even for what happened the last time.”

There is no premium in asking who started this (perhaps a group of Democrats including future Vice President Joseph R. Biden Jr. that killed the Supreme Court nomination of Robert Bork in 1987), or for refighting the war over whether a president toward the end of his term ought to make a high-court nomination (as Reagan did with his nomination of Justice Kennedy in November 1987, a result the GOP ignored last year).

Generally, however, the president gets his way, and generally the Senate applies few ideological tests. But now we are in a cycle of revenge that imperils any nominee’s efforts to win confirmation.

So is there a way out of this mess, the worst since President Franklin Roosevelt tried to pack the court to preserve his New Deal legislation in 1937?

A start would be presidential initiative to reach out to leaders of the rival political party, to seek their views on Supreme Court appointments, and to get a sense of who is confirmable. President Bill Clinton did some of that, and it helped him win large margins for Ruth Bader Ginsburg and Stephen Breyer, both of whom had strong ideological tints.

Or my proposal: Trump, facing a divided country with high emotions, seeks to mend fences and salve past injuries by offering a deal to both parties. He asks Democrats to join Republicans in giving swift and perhaps even unanimous approval to his nomination of Judge Gorsuch. He accompanies that with a vow to fill the next vacancy with Judge Garland, vowing to ask Republicans to support that selection.

The president would risk alienating part of his constituency by this offer.

But the president would stand above the public fray and would be aligned with the broad national interest at a time of partisan bickering.

He would drain the Senate swamp of the choking woody plants of partisanship — a boon to all who called in November for dramatic change in Washington and a gift to his successors.