With Judge Antonin Scalia’s passing, the national political dialogue has done a total change in course. People the last few days haven’t been talking about immigration, income equality or the last outrageous thing Donald Trump said, but rather who will be the next Supreme Court Judge. Along with that, the general question of will there be an appointee before the next president is sworn in?
To answer the second question first, we simply don’t know. The GOP has threatened obstructionism (again) in preventing any nominee to even be allowed a vote for confirmation, but it turns out the President does have some rare but narrow options.
According to SCOTUSblog, President Obama can make a recess appointment. Although his options there are more limited than they would have been before 2014 when another SCOTUS ruling narrowed the abilities of recess appointments (by any President) and expanded Senate abilities to nix such an effort.
From their piece;
Suppose President Obama goes ahead with a nomination to the open seat on the Court, and suppose that the Republican-controlled Senate chooses not to allow that nominee. The GOP has enough seats in the Senate to control that scenario.
Suppose, then, that the Senate goes into recess to allow its members who are running for reelection to spend some more time campaigning back home.
Could President Obama make a nominee during that recess? Only if the Senate is taking a recess lasting longer than three days, and does not come in from time to time during that recess to take some minimal legislative action. Both of those circumstances would be entirely within the Senate’s authority.
In that circumstance, a recess appointment to the Court would not be within the terms of the Constitution, as spelled out in Article II.
The same situation would likely apply when this year’s Senate session comes to an end, and the senators take a recess before the next Congress assembles.
The bottom line is that, if President Obama is to successfully name a new Supreme Court Justice, he will have to run the gauntlet of the Republican-controlled Senate, and prevail there. The only real chance of that: if he picks a nominee so universally admired that it would be too embarrassing for the Senate not to respond.
Most likely, the GOP won’t be forgetful in making sure they keep doing enough ‘minimal tasks’ as to allow Obama the opening to make a recess appointment. Stranger things have happened, however.
Putting aside a recess appointment, who would be some of Obama’s top choices? Let’s take a look at some of them here;
1) Judge Patricia Millett — Currently serving on the DC Court of Appeals — Not a typical partisan by any stretch, Judge Millett has been called fair minded by many on both sides of the aisle. Obama once called her ‘one of the nation’s finest.’ The court she serves on now is considered a stepping stone to the high court as well. She has argued 32 cases before the SCOTUS, the second most for any female ever. She also put in almost a decade in the Solicitor General’s office. She is qualified and fair-minded, of that there can be no doubt.
2) Judge Sri Srinivasan — Currently serving on the DC Court of Appeals — Another justice who has a reputation for being very non-ideological. He joined the DC court a few months before Judge Millett back in 2013. He is also the son of Indian immigrants and was raised in Kansas. Known for being practical and pragmatic, he won’t get many on the left excited, but conservatives will have to look long and hard to find a reason to reject him. The judge has also argued about two dozen cases before the SCOTUS. He is well prepared and would be the court’s first Asian-American appointed to the bench.
3) Judge Paul Watford — Currently serving on the 9th Circuit Court of Appeals — Watford has a unique background as he clerked for both a quite ‘to the right’ libertarian judge, Judge Alex Kozinski and clerked for the SCOTUS’s liberal stalwart, Ruth Bader Ginsberg. Considered a ‘moderate’ so again, progressives won’t be jumping up and down for him, but like Srinivasan, conservatives might find that it’s hard to just reject him out of hand.
4) Judge Diane Wood — Currently serving on the 7th Circuit Court of Appeals — Judge Wood is the type of choice that would enthuse liberals more than the previous choices. She is considered a mainstream liberal by many and has a fine body of work since she has served on the 7th circuit bench since 1995. She also did time in both Reagan’s and Clinton’s justice departments.
5) Judge Merrick Garland — Currently serving on the DC Court of Appeals — Another ‘moderate’ that might not sit well with those on the far left, but let’s face it, Obama is not going to get some ‘far left’ appointee confirmed in the current climate. In addition to that, it might be extremely difficult for the next President, should it be a democrat, to get anyone too far to the left appointed. All of that will have more to do with the Senate elections in November, however. Garland prosecuted the 1995 Oklahoma City bombing and was a finalist when both Kagan and Sotomayor were nominated.
6) Anita Hill — Currently a law professor at Brandeis University — Shortly after Scalia’s death, a petition started circulating online and gathered thousands of signatures pretty quickly. That petition was calling for President Obama to nominate Anita Hill. As the makers of the petition put it — “Anita Hill is a highly qualified legal scholar with all the right qualifications to be a Supreme Court Justice,” reads the Change.org petition calling for her nomination. “She will be an excellent choice to make the most important decisions facing our judiciary.” Anita Hill would be the longshot here, but her name recognition and particularly why she is recognized (the famous confirmation hearings of Clarence Thomas) might stir up the pot enough that just blocking her outright would be seen in a most negative light by voters. Still, the GOP has shown itself to be shameless and deaf to the will of Americans when it comes to imposing their will. If she could get confirmed, however, she would be the first African-American woman to serve on the high court.
Of course, there are others that have been mentioned. Some have suggested current Attorney General Loretta Lynch. From what I saw of her contentious AG confirmation hearings and the rocky relationship she has had with Congress since being confirmed, this isn’t very likely. Some Republicans have had the audacity to suggest names like Orrin Hatch and Lyndsay Graham. Those aren’t going to happen either. President Obama will probably only get one shot to try to thread this needle. His pick will need to be someone that cannot be just rejected out of hand. They will need to be thoroughly vetted and no stones unturned if Obama is to have any shot to get the Senate to play a little ball this spring / summer.
The other option besides the aforementioned ‘recess appointment’ will be for President Obama to put up a symbolic nominee. Someone who has no real shot, and will probably be told that going in. That person will be there just to show the GOP as obstructionists. That scenario might be the worst for the GOP going into the next election. One thing is for sure, the Democrats will point out the blocking of a SCOTUS nominee early and often. Folks these days want leaders who actually get things done. It isn’t about ‘hating Obama’ for many at this point, except on the fringes of America, it is about actually ‘doing your job.’
Featured image via wikipedia