Updated on February 16, 2016
Within the next few weeks, President Obama will call up one of the nation’s top legal minds and initiate one of the trickier conversations of his presidency. He will offer him or her the honor of a lifetime—an appointment to the Supreme Court—and then he’ll share a caveat they already know: It’s a nomination that’s probably doomed from the start.
That is one of the many awkward complications of the constitutional confrontation that has erupted in record time following the unexpected death on Saturday of Justice Antonin Scalia. Over the weekend, Senate Republicans up for reelection in 2016 largely fell in line behind Majority Leader Mitch McConnell’s declaration that it should be “the next president” who appoints Scalia’s replacement on the high court. Their support dampens Democratic hopes that electoral pressure from Republicans in swing states would force McConnell to give Obama’s nominee a fair hearing and a floor vote in the several months.
The president must now decide what kind of candidate to nominate. A centrist choice who has previously won Republican support and thus would be difficult for GOP senators to oppose? That could point to Sri Srinivasan, the D.C. Circuit Court of Appeals judge who was confirmed by a 97-0 vote just three years ago. Or it might point to another federal appellate judge in D.C., Merrick Garland, who has been singled out by Republicans in the past as the kind of consensus pick they could support.
Yet knowing that Republicans would reject—or more likely, simply ignore—even the most unobjectionable nominee, Obama could go for a more liberal pick like Judges Patricia Ann Millett, who sits on the D.C. Circuit Court, or Paul Watford of the Ninth Circuit. Both would add diversity to the high court and energize the Democratic base (Watford is African American), but both were also opposed by most conservatives when Obama appointed them to their current posts. The same is true of Attorney General Loretta Lynch, another rumored candidate.
It’s also possible that none of these judges would actually want the nomination, realizing that they’d have to subject themselves to what amounts to a public colonoscopy with uncertain prospects of actually being confirmed to serve on the court. That’s why there’s speculation that a senator like Cory Booker of New Jersey or Amy Klobuchar of Minnesota could be Obama’s choice. Republicans might still refuse to confirm either Democrat, but as senators they are accustomed to scrutiny, and it’s more likely that their own colleagues would at least treat them gently on the way to a filibuster.
At a press conference Tuesday afternoon in California, Obama offered few clues as to which way he was leaning other than to say he would nominate someone who was “indisputably qualified for the seat.” (He refused to take the bait when a reporter surmised from his words that he would go with “a moderate.” “No,” the president replied.) But as expected, Obama forcefully made the case that there was plenty of time for the Senate to consider and vote on a nominee, and he said there was “no unwritten law” that Supreme Court vacancies should only be filled in “off years.”
“The Constitution is pretty clear on what should happen now,” the president said. “Historically, this has not been viewed as a question.” He said this debate was merely an extension of years worth of Senate slow-walking on judicial nominations to lower courts. “We’ve almost gotten accustomed to how obstructionist the Senate has become when it comes to nominations,” Obama said. He noted that the battles over judges often drew little notice outside the Beltway, but in a warning to Republicans, he promised this would be different: “This is the Supreme Court. It’s going to get some attention.”
While Obama deliberated, the Senate descended into rather predictable charges of hypocrisy. Democrats accused McConnell and other top Republicans of disrespecting the president and willfully flouting their constitutional responsibility to provide “advice and consent” on a judicial nomination. “If my Republican colleagues proceed down this reckless path, they should know that this act alone will define their time in the majority,” Senator Harry Reid, the Democratic leader, wrote in the Washington Post.
Thinking otherwise is fantasy. If Republicans proceed, they will ensure that this Republican majority is remembered as the most nakedly partisan, obstructionist and irresponsible majority in history. All other impressions will be instantly and irretrievably swept away.
Republicans have tried to suggest there is “an 80-year precedent” of the Senate not confirming Supreme Court nominees in an election year. In turn, Democrats point to the 98-0 vote installing Anthony Kennedy as an associate justice in 1988, in Ronald Reagan’s final year in office. But Republicans note that the vacancy that Kennedy filled actually occurred in the middle of 1987 and that the only reason a Democratic-controlled Senate confirmed him was that Reagan's previous two nominees—Robert Bork (rejected by the Senate) and Douglas Ginsburg (withdrew)—both failed.
Conservatives have also highlighted a 2007 speech by Senator Charles Schumer of New York, the Democratic leader-in-waiting, who urged his party to block any potential Supreme Court nomination by George W. Bush in the final 18 months of his term. Schumer replied Tuesday in a post on Medium, writing that Republicans were “comparing apples to oranges” and that he was merely suggesting that Democrats “entertain voting no if the nominee [was] out of the mainstream.” He was not calling, he said, for Democrats to reject a Bush choice out of hand without a hearing or a vote.
Obama also faced a question Tuesday about his vote as a senator to sustain a filibuster against Samuel Alito’s nomination to the high court in 2005. The president dodged the question and suggested that he, too, was voting politically; he noted that senators often vote to appease constituencies or for other “strategic reasons,” but he didn’t directly say whether that was his reason for opposing the conservative Alito.
McConnell hasn’t explicitly ruled out allowing Obama’s nominee a hearing or even a vote; his only public statement since Scalia’s death said simply that “this vacancy should not be filled until we have a new president.” Conservative activists are already mobilizing before Obama makes his pick, however, and they are concerned that GOP opposition will soften if the nominee is obviously qualified, potentially historic, or both. In the days since McConnell made his statement, Republican Senators Rob Portman of Ohio, Kelly Ayotte of New Hampshire, Ron Johnson of Wisconsin, and Pat Toomey of Pennsylvania have all backed him up and said Scalia’s replacement should wait until a new president takes office. All four are facing tough reelection battles this year.
Two other centrist Republicans, Senators Mark Kirk of Illinois and Susan Collins of Maine, issued more equivocal statements on a possible nomination. “In the past we’ve had a problem with certain Republican senators who are a little too eager to seem bipartisan right after a nominee is announced,” said Curt Levey, who as the former president of the Committee for Justice has been battling Supreme Court nominations for more than a decade. The group is now affiliated with FreedomWorks, and they are urging Republican senators to “keep their powder dry” when Obama makes his pick. “Don’t say anything,” he said Tuesday morning, summarizing his advice on a conference call with reporters. “When the time comes to have a vote or not have a vote, fine, but do not at this point talk about how you want to ‘work with the president’ and [say] ‘isn’t it wonderful that we have the first, you know, disabled female black nominee.’”
The political strategy from conservatives is to argue against the nomination on process, not substance. Levey said Obama and the Senate “each have a constitutional role here. If the Senate decides that it doesn’t want to act, that’s as much within its constitutional role as Obama naming a nominee.” That decision could have ramifications in 2017 if a Democrat wins the presidency. A nominee who gets roughed up by Republicans now could be eliminated as a possible choice by Hillary Clinton or Bernie Sanders, who might not want to begin their terms with a difficult confirmation battle. But if conservatives stick to the procedural argument, then whoever Obama picks might become the frontrunner next year, almost a second running-mate for the Democratic nominee. And it could get more complicated still: Should Democrats win the Senate, Clinton or Sanders would be tempted to pick an even more liberal nominee, consigning Obama’s doomed selection to a footnote in history.
All of which will likely make an awkward few months for whoever the president picks. “It’s an honor just to be nominated” might be an Oscar-season cliché. But this year it might sound most genuine coming from a distinguished federal judge.