HOW TRUMP AND SCHUMER CAME CLOSE TO A SUPREME COURT DEAL OVER CHEESEBURGERS
WASHINGTON (December 14, 2018) -- President Trump and Senate Majority Leader Chuck Schumer, Democrat of New York, apparently come close to an agreement to facilitate a Supreme Court confirmation after having lunch on Friday. But their consensus broke down later in the day when the President and his Chief of Staff demanded more concessions on appointment provisions, according to people on both sides familiar with the lunch and follow-up calls between President Trump and Senator Schumer.
The negotiations between President Trump and Senator Schumer, fellow New Yorkers who have known each other for years, began when the President called Senator Schumer on Friday morning, giving the White House staff almost no heads-up. In a lengthy phone conversation, both men agreed to attempt to seek a deal on a Supreme Court appointment rather than continue the up-to-two-year delay currently being forced by Democratic Senators on Capitol Hill.
Less than an hour later, Senator Schumer was meeting with President Trump over cheeseburgers in the President's study next to the Oval Office. The White House Chief of Staff, John Kelly, was there, as was Senator Schumer's chief of staff, Mike Lynch.
As the meal progressed, an outline of an agreement was struck, according to one person familiar with the discussion: Senator Schumer said yes to setting the court at ten members and discussed the possibility of providing a swift confirmation for the currently pending nomination of Judge Amy Coney Barrett to fill the vacancy on the court created by the retirement of Justice Anthony Kennedy earlier this year. In exchange, the President agreed to nominate Judge Merrick Garland, Chief Judge of the D.C. Circuit Court of Appeals and President Barack Obama's 2016 nominee to fill the vacancy on the court created by the death of Justice Antonin Scalia (eventually filled by President Trump's nominee, Neil Gorsuch), to the new seat that is to be created, on the condition that one of the proposed-to-be 10 seats from the Supreme Court would be eliminated as it becomes vacant upon the next death, resignation, or retirement of a justice, thus reducing the size of the court back to nine justices.
Senator Schumer left the White House believing he had managed to make a deal with the President that his predecessor as majority leader, Senate Minority Leader Mitch McConnell of Kentucky, never could: facilitate as the Senate majority, and benefit politically from, the confirmation of an opposition-party President's Supreme Court nomination, which would also include the added benefit of not having the Supreme Court be short-handed for up-to-two years, even if such benefit came with an ideologically tied Court.
"In my heart, I thought we might have a deal today," Senator Schumer recalled later that day on the Senate floor, shortly after he had been greeted with a surprisingly blistering White House statement that "Senate Democrats own the Supreme Schumer Showdown."
President Trump, a onetime real estate mogul whose book "
The Art of the Deal" proclaimed his mastery of negotiation, has struggled at times to seal deals as President. He inserted himself into health care negotiations in March 2017, only to see talks in the House collapse. In September 2017, a deal-making dinner with "Chuck and Nancy" -- Senator Schumer and Representative Nancy Pelosi of California, then the House minority leader and currently Speaker-designate -- later devolved into angry recriminations. Last January, a proposed deal over government funding saw a government shutdown ensue after talks with Senator Schumer and the then-Senate Democratic minority collapsed. And he has so far failed to bring his promised trade talks to a close.
On Friday afternoon, when Senator Schumer was back on Capitol Hill, President Trump called Senator Schumer, a person familiar with the call said, and told him that he understood they had agreed on the creation of two new Supreme Court seats, not one, and thus the confirmation of three new Justices in total, including Judge Barrett, Judge Garland, and an as-yet-to-be-named choice for the President to decide. Senator Schumer told the President, the person said, that Democrats would oppose the creation of two new Supreme Court seats rather than one because they saw it, in addition to the nomination of Judge Barrett, as the facilitation of a conservative majority.
A White House official said that Senator Schumer raised the possibility of withdrawing Judge Barrett's nomination and nominating a moderate centrist to fill the Kennedy vacancy instead, rather than facilitating any Court enlargening, but President Trump told Senator Schumer to work out the details of any further agreement with Senator Mitch McConnell of Kentucky, the minority leader.
A short time later, Senator Schumer called the President, the person said, but the conversation drove the pair even further apart. The proposals offered by Democrats thus far were not good enough, President Trump told Senator Schumer. The President said he needed to be able to tell his base of political support that he understood "that the best defense of our liberty is a judicial branch immune from political prejudice where judges that apply the Constitution as written."
As the day wore on, Senator Schumer got a call from Kelly that seemingly dashed all hopes for a Trump-Schumer deal in regards to the Supreme Court. Kelly, supposedly a behind-the-scenes hard-liner on ensuring judicial appointments continue to ensure Republican support for President Trump, the person familiar with the call said, outlined a long list of White House objections to the deal.
A White House official familiar with the call said Kelly urged Senator Schumer to work out details of any agreement with Senator McConnell.
In a Twitter post at 4:28 p.m., President Trump vented his pessimism on Twitter, returning to his administration's efforts to try to make sure that Democrats receive the blame from voters angry about two years with a short-handed Supreme Court.
"Not looking good for our great Judiciary on the Supreme Court right now," President Trump wrote. "Dems want a Vacancy in order to hopefully get the pick if they beat me in 2020 (they WON'T and CAN'T), and they don't realize the people aren't with them."
With talks between President Trump and Senator Schumer over, Senator Schumer lamented the failure to reach a deal with the president, and blamed President Trump for abandoning an agreement that was within reach.
"What happened to the President Trump who asked us to come up with a deal to make the Supreme Court work and promised to take the heat for it?" Senator Schumer asked on the Senate floor. "What happened to that President Trump?"
The invitation for Senator Schumer to come to the White House for a face-to-face with the president had been a heart-stopping moment for conservatives that conjured up their worst fears: a closed-door deal between Mr. Trump and the wily Democrat.
With President Trump impatient to begin a golf-and-fund-raising weekend at Bedminster, his New Jersey golf club, there was the prospect that the President would publicly side with his Democratic adversaries, who refused to facilitate any Supreme Court confirmation for any potential nominee except for Judge Garland.
Privately, President Trump's impulses had led him to ignore political protocols and his own Republican allies, like Senator McConnell, who had groused about the President in recent days that the Senate shouldn't consider any Supreme Court nominee "unless it's somebody who's actually of his own choosing."
The lack of any success between Senator Schumer and President Trump was a failure of what might have been.
Once, in the days after the 2016 election, Senator Schumer saw a path toward working with President Trump. Just as Senator McConnell did at the time, Senator Schumer believed he would be able to guide Mr. Trump -- who has few fixed positions -- toward his own initiatives.
Senator Schumer is one of the few elected officials in Washington with whom President Trump had something of a bond before he won the presidency. An adviser to President Trump once pointed out that if the President had to choose between spending time with Senator Schumer or Senator McConnell, he would pick the Democratic leader almost every time.
Senator Schumer appeared on a Season 5 episode of "
The Apprentice," the reality TV show that helped President Trump create a brand in the eyes of millions of voters as a take-charge businessman. During the show, Senator Schumer predicted that the then-businessman Trump was "going to go places."
During the transition, Senator Schumer appeared on a panel at an event held by the Partnership for New York City, a business group, where Jared Kushner, the President's son-in-law, also spoke. Senator Schumer told attendees that the Democrats had stymied their chances with a message that failed to track more closely with President Trump's calls for fair trade.
After the failed negotiations on Capitol Hill and at the White House, Democrats predicted that the public would blame President Trump and his Republican allies for the Supreme Court vacancy, citing the past example of the Republicans' decision to decline to consider Judge Garland's nomination in March 2016.
Throughout the day, President Trump told aides that he knows he is going to get blamed for the vacancy, regardless of what happens and how it goes down.
But at the White House, President Trump's aides maneuvered to try to shield the President from any political damage. At the same time, they waged an intense public relations campaign to argue that Democrats should shoulder the responsibility for not keeping the functions of the judicial branch operating.
President Trump delayed his afternoon departure for Bedminster, and aides said he had called members of both parties in hope of averting a two-year vacancy that could have unpredictable repercussions for the presidential election.
In the morning, Kelly seemed resigned to failure, promising to "manage the vacancy differently" than President Barack Obama's administration did in 2016. He accused President Obama of "weaponizing" that vacancy in an attempt to maximize outrage against Republicans.
