“Oh my God, you’re putting my mother’s cats on the Supreme Court.”
That line was uttered by a fictional character, Donna Moss, on a fifth season episode of The West Wing, called “The Supremes.”
In the episode, a deeply conservative Supreme Court Justice had passed away unexpectedly, leaving a vacancy on the court to be filled by a Democratic president.
This presented a problem, because a liberal replacement would have been blocked by the Republican Senate, which drove the president toward a number of moderate nominees whom he thought he could get confirmed.
The staff, enamored with a liberal candidate played exquisitely by Glenn Close, becomes depressed that political realities will mean they will have to settle for a milquetoast judge who has no inherent judicial ideology.
It was a chance conversation that changed everything.
Donna, played by Janel Moloney, was talking to Josh Lyman, the president’s deputy chief of staff, when he noticed a picture of two cats that Donna’s mother had sent her. After making fun of her parents for being “cat people,” Donna explained that they had two because the single cat they previously owned had died, and they couldn’t agree on a new cat.
“My mother liked the Abyssinian, my father the gray and after 39 years of marriage they’ve outgrown compromise, so they got both,” she explained.
As so often happens on television, this unrelated story caused an epiphany in Josh, and an idea was born.
That idea? Ask a liberal justice to retire, opening a second seat, and compromise with the Republicans, allowing them to handpick a conservative nominee, while the president would handpick a liberal nominee.
Fictional President Jed Bartlet was a tough sell, particularly when he learned who the conservative nominee would be. Yet after seeing him passionately debate with his chosen liberal justice, and after meeting with him in private, Bartlet considered the idea.
In an Oval Office exchange between the president and the conservative jurist Christopher Mulready, played by William Fichtner, Bartlet, played brilliantly by Martin Sheen, registered his skepticism and argued for putting a center-left moderate on the court.
“Plenty of good law written by the voices of moderation,” he said.
“Who writes the extraordinary dissent?” replied Mulready. “The one man minority decision whose time hasn’t come, but 20 years later, some circuit court clerk digs it up at 3 in the morning. Brennan rallying against censorship. Harlan’s jeremiad on Jim Crow.”
The argument was plain. People with deeply held convictions on both the left and the right are necessary to have a truly robust and important debate about the law.
I’m sure you can see where I’m going with this.
Over the weekend, the country learned of the tragic passing of the last true giant on the Supreme Court, Antonin Scalia. For three decades, he served as the voice and intellectual guardian of the court’s right wing, penning some of the most intelligent and thought-provoking opinions in the court’s history.
This profound loss immediately became political. A Democratic president and a Republican Senate are already facing off about what to do about the seat. President Obama is vowing to nominate a successor. Senate Majority Leader Mitch McConnell is promising to block that nominee until after the election.
But what if this eerily prescient fictional story provided the blueprint for a very real compromise idea?
What if the president approached Ruth Bader Ginsburg, the oldest of the liberals on the bench at 82 years, and pitched her an idea? Obama would meet with McConnell and hammer out a deal, whereby the president would nominate two justices, one deeply liberal and one deeply conservative, to replace Scalia and Ginsburg. If a deal can be struck, Ginsburg announces her retirement, and the Senate confirms both nominees.
But, the president has a historic opportunity to reshape the court in a liberal direction, you might say. Maybe. Assuming the Republican Senate cracks and confirms his nominee. But they almost certainly won’t.
So what do you do? Let the seat sit vacant and hope Hillary Clinton — the worst candidate in modern political history — can win the presidential election and fill the seat? That is a pretty big gamble to take.
The alternative would maintain the ideological balance of a court that has upheld Obamacare and legalized same-sex marriage.
It would prove that compromise is still possible, and a government divided between the parties can function.
It would give Obama a third liberal appointee on the court, and would preserve the fictional Mulready’s desire to have two brilliant ideologues there to write the “extraordinary dissent” that Justice Scalia was so famous for.
It is such a brilliant idea, that there is no way it will ever happen.