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.”