Scalia successor may be hard to find with GOP hostility
Washington — Wanted: Top legal mind with Supreme Court aspirations, to serve as a national political football. Candidate must be camera-ready and prepared for disappointment. Contact Barack Obama.
The stance of Republicans who are refusing to hold a vote or hearings on any candidate nominated by Obama is complicating the president’s sales job as he seeks a replacement for the late Justice Antonin Scalia. Though Obama insists he’ll put forward an “outstanding candidate” no matter what the GOP says, the White House is hard-pressed to offer a convincing scenario in which that person gets confirmed.
Overnight, Obama’s nominee will become the face of well-financed, high-intensity, election-year campaigns — both for and against — that will rage across the country. Though guaranteed at least a footnote in the history books, the nominee will have little ability to influence the debate and even less control over how the chapter plays out.
For a Supreme Court hopeful, the scenario is less than ideal. High-ranking judges and others fit for consideration tend to be loath to throw themselves into the middle of public controversy.
“As much as you tell them it’s not really about them, judges don’t engage in politics and take pride in their impartiality,” said Christopher Kang, who prepared lower-court nominees for confirmation as former deputy White House counsel. “It can be hard for them not to take it personally.”
To be sure, a Supreme Court seat is most jurists’ dream job. Anyone asked to serve in the coveted, lifelong post would find it hard to turn down.
And there could be some hope. Despite the GOP’s hard line, Republicans could relent and confirm Obama’s nominee — especially if he picks a so-called consensus nominee — someone so well-regarded that Republicans lack a compelling rationale to reject him or her. Among those Obama is considering is Republican Gov. Brian Sandoval of Nevada, said two people familiar with the process, who weren’t authorized to comment publicly and requested anonymity
Obama waxed hopeful on Wednesday that GOP opposition would fizzle once the “abstraction” is replaced with a living, breathing person.
“Let’s see how the public responds to the nominee that we put forward,” he said in the Oval Office.
But unlike most Supreme Court nomination battles, which typically run a few months, this one is likely to turn into a circus that just won’t end. If Republicans hold their ground on refusing a vote, Obama will ostensibly keep pushing his nominee until his presidency ends in January 2017.
If a Democrat wins the White House in November after an unsuccessful Supreme Court push, Obama could renew his efforts during a lame-duck session of Congress or his successor could take up the baton. Democratic candidate Hillary Clinton’s campaign wouldn’t say whether she’d consider re-nominating Obama’s pick if elected, but in a statement she called the GOP position “an offense to the president and to the American people who elected him.”
Already, two politicians whose names were floated as possible contenders took themselves out of the running. California Attorney General Kamala Harris, who is running for U.S. Senate, said she wasn’t interested, and Minnesota Sen. Amy Klobuchar has said she doesn’t want to be considered.
Influential groups are poised to jump into action once Obama announces a nominee, digging through old yearbooks, scouring writings and speeches. Party campaign committees, legal groups, electoral super PACs and even the presidential candidates are expected to join the public fight for or against Obama’s nominee.
Senate Republicans, fighting to preserve their delicate majority in November, will all make a similar argument: Elect us, or a Democratic-run Senate will allow Obama’s nominee through, said a senior Republican official who requested anonymity to discuss the party’s internal campaign strategy.
History shows just how rough the process can be.
In 2005, George W. Bush nominee Harriet Miers was slammed as ill-prepared, suffered the indignity of having to redo parts of her Senate questionnaire, and forced to admit her bar license was once suspended. She eventually withdrew. Justice Clarence Thomas famously described his own televised confirmation spectacle, with its allegations of past sexual harassment, as “a national disgrace” and “a high-tech lynching for uppity blacks.”
Dim prospects for confirmation could give an edge to candidates who already enjoy lifetime appointments to a federal bench, as opposed to current bureaucrats or elected officials. Attorney General Loretta Lynch and Homeland Security chief Jeh Johnson have both been floated as possibilities, but keeping their day jobs would be complicated.
Current federal judges wouldn’t have that problem, and as an added benefit, they’ve already undergone a thorough public examination. Several of those under considerations — including Sri Srinivasan, of the D.C. Circuit Court of Appeals, and Jane Kelly, of the Eighth Circuit — were unanimously approved by the Senate.
“If he nominates a sitting judge, it won’t affect that judge that much in terms of what they do,” said M. Miller Baker, who worked on the Judiciary Committee’s legal staff during the Clarence Thomas and Ruth Bader Ginsburg confirmations.
Indeed, it was once tradition for rejected justices to simply go back to their former gig. Clement Haynsworth and John J. Parker both returned to circuit court positions after Senate rejection.