Below is my column in USA Today on some of the possible nominees to fill the vacancy left with the death of Associate Justice Antonin Scalia. There is a long list of potential nominees and only some are discussed in this column. One of the more interesting prospects is Jane Kelly from the Eighth Circuit who would bring badly needed trial experience to the Court and particularly a rare criminal defense background. As a threshold matter, it is worth noting that the current chaos that we are witnessing over Scalia’s replacement is the result of a long-standing flaw on the Court. As I have argued for many years, our Supreme Court is demonstrably too small and should be expanded by Congress to 19 members – roughly the size of other large nations – to avoid so much power being concentrated in so few hands. If the Court was larger, there would likely be no question that President Obama could get a nominee confirmed because there would be greater turnover on the Court and less at stake with each justice. However, as it stands, even a moderate nominee would move the center of gravity of the Court significantly to the left and would likely produce a host of sweeping changes on gun rights, abortion, affirmative action, and other areas. That is something that the Republicans have pledged to bar, at least until we know who the next president will be.
So our dysfunctionally small Court has left us in another dysfunctional standoff. However, we have some added issues due to the timing of this vacancy as discussed in the column below.
The passing of Supreme Court Justice Antonin Scalia has ignited the usual pundit guessing-game about possible successors, but this time with an unusual twist. It is exceptionally rare for a justice to die in the midst of a congressional session, let alone in the final year of a lame duck presidency. That means the first question for President Obama will be not which nominee has the best chance at winning confirmation, but whether he wants to try to win at all. If he is convinced that no nominee will be voted on before the new administration takes office in 2017, the course preferred by Senate Majority Leader Mitch McConnell, the White House may want to pick the best losing strategy. Viewed from these different perspectives, the list of candidates changes dramatically.
Here is the calculus. If you honestly think (as the White House has suggested) that the Republicans will eventually back down, you will want to put forward your top scoring nominees: candidates who are relatively young, moderate and free of controversial writings or statements. If you realistically think that the Republicans will hold firm and either filibuster or reject any nominee, you will want to put forward your best losing candidates, regardless of how liberal or provocative they may be.
GRAND SLAM LIST
Obviously, Republicans would love Obama to nominate a radioactive or hard left candidate. However, their dream of Kanye West or Gloria Steinem is not likely to pan out. Instead, the Administration could pick a respected moderate who has taken no positions on hot button issues. Here are a few of the most promising:
Sri Srinivasan: A moderate on the D.C. Circuit, Srinivasan is only 48 and was confirmed unanimously in 2013. Ted Cruz is not just a longtime friend but Republican Sen. Orrin Hatch called him “terrific.” Srinivasan was born in India and would be the first-ever South Asian circuit court judge and Hindu on the Court. While some liberal groups would not be thrilled with the former Exxon lawyer, Srinivasan would present one of smallest targets for the conservatives.
Jacqueline Nguyen: Nguyen, 50, has an incredible life story after coming from Vietnam at age 10 amid the fall of South Vietnam. Her opinions are a mix politically, but she drew criticism from liberals for a dissent favoring a police officer in an abuse case. She was confirmed to the Ninth Circuit Court of Appeals in San Francisco by a near unanimous 91-3 vote.
Merrick Garland: Garland, 63, is the Chief Judge of the D.C. Circuit Court of Appeals and a true moderate. Ironically, his age could work to his advantage with conservatives who may feel that his age limits their exposure if he turns out to be more liberal once on the court. He clerked for Supreme Court Justice William Brennan and counters views that Obama is making his selections based largely on diversity criteria.
SACRIFICE FLY LIST
While the “best losing candidate” may seem like an oxymoron (and you may believe that only a moron would agree to do it), there are candidates who are ideal for a losing scenario. This more pragmatic view is to try for a sacrifice fly that moves the election even if you do not move the nomination. Republican voters will already rally to try to avoid a liberal nominee who could threaten gun or abortion rights or other big ticket causes in the election. A compelling nominee could rally irate Democratic voters in the aftermath of a bruising confirmation fight.
Of course, agreeing to be a sacrificial nominee to the courts is a lot like signing up with the Navy to be a target buoy — it does not exactly make for a promising career. A nominee could wind up damaged goods or even “Borked” (the verb created after the Democratic trashing of nominee Robert Bork near the end of the Reagan administration). So you need not just a compelling nominee but a willing nominee.
Here are the best options:
Loretta Lynch: Lynch, 56, is the current U.S. Attorney General, and would be perfect for a sacrifice fly nomination. Republicans would be faced with roughing up a prominent female candidate with a compelling life story. She has no judicial experience, which means no opinions to pick apart. As a prosecutor, she has a tough-on-crime record. She is also very good in combative hearings and is guaranteed to still have a job when they are over. Lynch is not as good as a successful nominee since she is a bit older and also would have to recuse herself from a number of key cases. However, if you are looking at marginalizing the GOP with women and African-Americans, a Lynch nomination could be just the ticket.
Mariano-Florentino Cuéllar: Cuéllar, 43, is a liberal justice on the Supreme Court of California who served in both the Clinton and Obama administrations. Born in Mexico, he could rally the all-important Hispanic vote and force the GOP to bar the first Mexican-American on the court. As an immigrant, he would resonate well with a key political group.
Paul Watford: While the African-American vote is considered a lock for the Democrats, there remains the question of motivating this bloc to come out in the general election. A bruising confirmation fight for Watford, 48, might do it. A judge on the Ninth Circuit Court of Appeals, he was confirmed 61-34. Opponents deemed his positions on the death penalty and immigration policies too liberal.
Of course, Obama could make a choice entirely on the merits — or the GOP could commit the political version of an infield error and a sacrifice fly could actually score. Babe Ruth said, Never allow the fear of striking out keep you from playing the game. The question is what game are we playing.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors.
February 18, 2016
The pillow over the face is certainly symbolic for how progressives view the constitution.
This may be an exercise in gamesmanship. If this were a “rational” game (which is assuming much given the players), the parties would analyze the risks and rewards of each selection and agree on a nominee that avoids unacceptable risk of extreme positions. Thus, if Obama picks a perceived “liberal” person such as Cuéllar, the probability of success is minimal in a Republican-controlled Senate. If the process of rejection is lengthy, Obama could run out of time to nominate another.
A winning strategy could be for Obama to select a well-credentialed moderate candidate such as Srinivasan on a theory that Republicans would face of choice of accepting a moderate now, but avoid a possibility of a new Democrat president and Democrat-controlled Senate next year, which could result in a far more liberal nominee being accepted.
Let the games begin.
LOL!
Yeah, the world is progressing (evolving) so well. At this rate we will see the 2nd Crusades, followed by witch trials and then finally onto another Age of Reason. We will land eventually at the 4th self-evident truth in the Declaration of Independence and then once again be on the clock for the next wave of “super-intelligent” folks that think can outsmart human nature through progressivism.
Nicely done!
Isaac, Show me where I pointed to Scalia on his own. I stated that the SCOTUS is already a tool for the progressives. Their record shows it and the damage to our liberties is done. They do not seem to follow the Constitution but then again, neither does this jerk president. So your point is we should evolve to less freedoms and liberty? I think your the regressive of the bunch. It’s just too bad the lazy dumbed down society agrees with you.
Jim22
Scalia was anything but a tool for the progressives. He was a tool for the regressives. He was a well spoken tool, but a tool never the less. So, pick your direction, forward with evolution and the world or backwards into a hole in the ground.
What rational explanation has been provided to explain why no autopsy was performed? He wasn’t at home, there were no witnesses and he was found with a pillow over his face. Does the family have the legal right to prevent an autopsy if investigators believe one is warranted?
The SCOTUS has shown they are already just a tool for the progressives so none of this really matters. Rewriting law and defining State or state shows they are not about following the Constitution. Sad too, since they are our last line of defense from a jerk president.
Wouldn’t it be interesting if Scalia’s good friend, Justice Ginsburg, decided to resign?
This column demonstrates how trivial and political the criteria for picking a SCOTUS justice has become: only one of the seven candidates mentioned had qualifications discussed (criminal justice experience).
Competence barely rated a mention; every other factor was skin color, friends, immigrant status, place of birth, etc.
The criteria used to pick the next justice reminds me of a bride arranging the guest seating at a wedding.
Reblogged this on Scoop Feed.
Obama’s legacy continues to get pounded. It is because of his arrogance that the Senate flipped so dramatically and now he won’t get his nomination through. You progressives crap in your sandbox and then complain when you step in it. You might destroy this republic yet but by God you will not succeed without a fight.
Obama won’t get a liberal Democrat in. That’s a fact. So why propose a liberal Democrat? The only purpose would be to use the process to paint the Republican party with their own broad obstructionist brush. The Republican party has made it clear that obstructing Obama comes before the business of the nation. If Obama nominated Lynch or another lost cause he would be seen clearly by most, including fence sitters, as playing political games with the instruments of the people.
If Obama nominated someone like Sandoval this would take the focus off of political gamesmanship, to a much greater degree. It would still include a degree of gamesmanship but Sandoval, although centrist on abortion and other liberal positions is a Republican. He is also a Hispanic, a fast growing minority. He is too centrist for the Republicans to approve so if they refuse him they look much more like who they are, obstructionists for the sake of obstruction and not defenders of the Constitution. Obama would come off looking much more like a President that wants to unite the country than if he nominated a Democrat party obvious comrade.
Unfortunately American politics have reduced our democracy to this nonsense. Unfortunately America’s beginnings as represented in sacred texts and structure is so sacrosanct that it is difficult if not impossible to make changes that will benefit the people they are supposed to serve. The foundation of our nation was created and developed by people for the people, not some extraterrestrial power for ever, regardless. A Supreme Court of at least fifteen members would avoid this sort of staining. There needs to be better representation of the structure and meaning of the laws as well as the structure and make up of the population. As it is now, the Supreme Court is more a political tool than a protector of the Constitution. What the Constitution means depends on which party prevailed in placing their people on the bench. In some cases as with Scalia, it is just that obvious. Scalia was instrumental in designing individual rights to mean oligarchical power. This is not the concept of a democracy. Sandoval would be a good choice, but a better choice for a bench with 15, 17, or 19 members.
The next Justice should have jury trial experience. By that I mean as a lawyer representing individuals and one who represented both civil case parties and criminal defendants. We want someone who has had the burden of having a human’s life on the line. Not some Ivy League, weeny dork who clerked for Scalia and then worked for the Justice Department and then taught at some dork law school. No. A REAL lawyer. A Hugo Black.
If Scalia had wanted the President to attend his funeral, he should have shown enough respect to attend all of the SOTUs, and not make such disparaging, personal remarks about the President.
And do you know who paid for Scalia’s trip to Texas? Someone who had business before the court! Bust of course Scalia was strict about the Constitution, you know, except when he wasn’t.
Other presidents have skipped funerals, but really only this one matters.
I hope he nominates a true liberal justice and let the Senate Republicans show what true hypocrites they are
Line up all the Democrats to vote against him. Then nominate Mitch McConnell. The Mitch would then have to backtrack from his stance on voting on anyone and since he could not vote for himself would have to say something hill billy sounding and right down the pike.
Lisa N “He’s chosen to stay home and break a tradition of the last 43 presidents.” Obama doesn’t really even try to hide who he really is. W.C. Fields said “Never give a sucker an even break.” and unfortunatley too many Americans are suckers.
Ralph Adamo; You comment wiith the mafia video included hit it out of the park. I keep trying to tell people that precious ittle has changed since the days of the Roman Empire. Try reading “Claudius the God”. It’s all there and it’s all HERE!!! The great lengths…the great depths of desperate depravity people will go to to gain and keep power….it’s all here now. Imagine what Caesar or Nero would have done with the weapons and technology we have today and you have today’s headlines. And the result it going to be the same; the fall of the Globalists empire. We’ll have yet another in a long, long, long series of literally thousands of revolutions with the same results…..Something needs to break this horrifying cycle once and for all.
Jon Turley, of course, has absolutely nothing to say about the blatant violation of the Texas Code of Criminal Procedure in Justice Scalia’s untimely death. Since Turley is understandably too scared to discuss it, I will. The law says that a justice of the peace shall conduct an inquest into the death of a person who dies in the county served by the justice if ANY of the following conditions are met:
– The body or a body part of a person is found, the cause or circumstances of death are unknown, and:
(A) the person is identified; or
(B) the person is unidentified;
-the circumstances of the death indicate that the death may have been caused by unlawful means;
or
-the person dies without having been attended by a physician;
Clearly, an inquest was absolutely required in circumstances of Scalia’s death, under the law, but the law was plainly violated when Cinderella Guevara decided to “certify” the cause of his death over the telephone without ever seeing Scalia’s body. The main stream media, of course, remains totally silent, as are most websites from alternative sources, like this one which purports to address legal issues facing the public. Of course this case also involved one of the most important people appointed to hold a US Government position — and one of the top positions a lawyer can possibly hold — who died unexpectedly and under suspicious circumstances. So when the law was flagrantly violated in Texas — a state also infamous for one of the most important political murder conspiracies of all time — nobody bats an eyelash.
Yes, I know what you’re thinking. Cui bono? And Presidents don’t have people killed like leaders in the Mafia do to people who get in their way, right?
Think again:
Obama would attend Justice Scalia’s funeral if he were a liberal thug.
He’s chosen to stay home and break a tradition of the last 43 presidents. Maybe it’s best because it’s not a call to arms for the BLM or his son Trayvon.
He is a disgusting display of a leader and shouldn’t soil that Christian church with his presence, he might turn to dust. I wish. . . .
JT,
I think you should also include Janice Rogers Brown (Republicans and Democrats love her.) in your Grand Slam List. For more on her see:
https://en.wikipedia.org/wiki/Janice_Rogers_Brown
Sorry Professor Turley, but Lynch is a horrible pick. She’s proven she will not enforce federal laws much less Constitutional ones.
The one from the 9th circuit is a no way for me. Their all too liberal.
My pick would be the 1st one but I thought Scotus judges had to be born on US soil.
I’d nominate YOU. I know you’re liberal but you respect our Constitutional laws and that’s all I want in a Scotus judge.
PS: I don’t want a judge based on their nationality or skin color. I just want one that will follow Constitutional laws, unlike the last two put on there.