Whoever accepts Obama's nomination will walk into a wall of political fire
A nominee could be left hanging in limbo for a year with no guarantee that they'll end up on the court
It might be the best job in town – at the worst possible time.
President Barack Obama is suddenly searching for a new Supreme Court justice after the death of conservative icon Antonin Scalia left a rare vacancy at the pinnacle of U.S. jurisprudence.
Normally, an open spot on the exalted bench – complete with a lifetime tenure and a boatload of benefits – would have those who labor in the law’s dusty obscurity salivating at the chance to crown their careers in the black robes of the nation’s highest court. And candidates with political inclinations have extra incentive to covet this particular seat, as it comes with a chance to tilt the ideological balance of the court and shape the nation’s future for decades.
But this time, things are different.
Whoever accepts Obama’s nomination will walk into a wall of political fire. A pitched battle is already raging over Scalia’s seat, embroiling the White House, Congress and presidential candidates eager to whip up grass-roots activists.
White House Deputy Press Secretary Eric Schultz insisted Monday that Obama will nominate a successor to Scalia.
But for all their troubles, whoever is chosen could very well not end up with the job.
Senate Republicans are warning that they may not even grant Obama’s nominee a hearing, saying it should be up to the next president to fill the vacancy.
Hanging in limbo
A nominee could be left hanging in limbo for a year with no guarantee that, even if a Democrat wins in November, they’ll end up on the court. Of course, if a Republican wins the White House, they can forget it.
At worst, if the GOP relents and holds confirmation hearings, the nominee could emerge so damaged by the political tumult that their reputation could be shredded along with their hopes of one day reaching the Supreme Court.
Even without the intrigue surrounding Scalia’s potential replacement, the modern Supreme Court nomination process is a trial to be endured. The latest issue of the New Yorker reports that Associate Justice Sonia Sotomayor found her 2009 hearings a “horrible experience” that “really got her down.”
For Obama’s next nominee, the ordeal will be many times worse. And there doesn’t seem any obvious way for Obama to shield his pick.
“It is possible that he could bend this like Beckham and get it through,” Jonathan Turley, a professor of law at George Washington University told CNN’s Jim Scuitto. “But I wouldn’t bet on it it. The fact is, you are replacing a conservative icon. Any moderate nominee is going to move this needle to the left on the court and it is going to be a battle royale.”
The sudden opening on the court is emerging as a top issue in an already vicious White House campaign, and threatens to expose the eventual nominee to the full fury of the conservative political, legal and media machine.
Taking a pass
So it would be no wonder if a candidate might choose to take a pass on the partisan anger that surrounded the likes of Clarence Thomas, who did make it to the court. Ronald Reagan’s nominee, Robert Bork, and Harriet Miers, George W. Bush’s White House counsel and Supreme Court pick, did not make it through the acrimonious process.
It would be difficult to see, for instance, why one often-mentioned potential presidential nominee, Kamala Harris, the California Attorney General who is running for a Senate seat, would instead opt for a Supreme Court spot that might be a mirage.
There might also be a case for the President to take on a pass on someone like Sri Srinivasan, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, who many see as a Supreme Court justice in waiting.
Srinivasan, who has historic potential as the first Indian-American on the high court, was confirmed unanimously by the Senate for his current post. But his supporters might see a nomination now as a waste, given the risk that he could be burned by a bitter confirmation process and left too stigmatized to be viable in future.
So what type of nominee might be willing to take on such a poisoned chalice?
For sure, whoever is picked would have to be a rare glutton for punishment. But some legal experts believe the White House will still have no trouble drawing up a list.
“Number One – most judges, if they are not sitting on the Supreme Court, toil in relative anonymity,” said Professor David Ryden of Hope College, Michigan, whose research focuses on the how the Supreme Court influences the electoral process. “They are human beings. There is the lure of the limelight and there is the honor of being named.”
Daniel Franklin, a Georgia State University political science professor and author of the book “Pitiful Giants: Presidents In Their Final Term,” said that for lawyers, the Supreme Court is the equivalent of the big leagues. That could mean that even a nomination as challenged as this one is special.
“If you say, you have a remote chance of playing center fielder for the Dodgers, I would take it,” he said. “It is still a pretty big deal.”
There are some potential ways out of the imbroglio for Obama that involve finding an unorthodox candidate who might be flattered by a nomination.
Since the effort to replace Scalia comes in the twilight of his presidency, Obama has much less leverage than when he picked Sotomayor and Elena Kagan in his first term.
That means he may have no choice but to settle on someone less palatable to liberals but who might increase his minimal chances of winning a confirmation.
“The president is on the ideological spectrum at one point and the Senate is on the ideological spectrum on another,” said Franklin. “Even in a normal circumstance, the President has to meet the Senate somewhere in the middle with his preference while getting someone as close to his preference as possible.”
Franklin added: “Now, he has to move that point closer and closer to the Senate’s point of preference.”
If Obama’s priority is to get a justice confirmed at all costs, he could call Senate Republican Majority Leader Mitch McConnell’s bluff and name a moderate, establishment Republican who GOP senators would feel forced to support – perhaps someone like GOP Sens. Orrin Hatch of Utah or Sen. Thad Cochran of Mississippi as the nominee, Franklin said.
But that approach – effectively installing a pro-life nominee with big abortion cases looming – would enrage Obama’s liberal backers.
Still, it would move the court incrementally left on some issues from where it stood when Scalia was alive. And since Hatch and Cochran are 81 and 78 respectively, they would unlikely be a choice that would haunt the President for decades.
Such a scenario, however, seems remote given the political ire of the times. Obama seems more likely to take a more nakedly political route.
He could pick someone he knows is unlikely to be confirmed, but who would be willing to do a service for their party and become a cause celebre throughout election season.
A politician already locked in the heat of partisan battle might work in this case – that’s why the names of Democratic Sens. Amy Klobuchar of Minnesota and Cory Booker of New Jersey have been floated. Neither have re-election races in 2016 and both are rumored to have presidential ambitions that might benefit from a spell in the national partisan spotlight.
And if for some reason their colleagues found it impossible to block them in the Senate’s clubby atmosphere, there are worst places to end up than on the Supreme Court.
Another approach would be to choose a candidate who is a woman or a minority – perhaps someone from the Hispanic community – who could be crucial in driving up Democratic turnout in November.
Stalwart Republican opposition to such a nominee would enable Democrats to paint the GOP as prejudiced and motivated by considerations other than legal reservations – and perhaps might embarrass some swing-state Senate Republicans up for re-election.
And even some judges already on lower courts might be willing to serve as a political placeholders for such a strategy, said Ryden of Hope College.
“Judges have their own political preferences and agendas and there are many on the federal court bench … who would fit that label and be happy to collaborate on a strategy with the White House – even if they weren’t the ones who would immediately benefit from it,” he said.