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
L’Observer – “Whereas, I feel that it is a horror that millions of Americans were denied access to health care. And I am happy to pay a greater premium that others may have coverage.
I think all Americans deserve health care – even if it costs me more. You don’t.”
Ummm, no they don’t deserve anything. They have the right to educate themselves, get a job and buy insurance if they want too. It’s called consequences for the choices you make in life. Your choices are not my problem, get it? Who was stopping you from giving more money to the wasteful govt. before they decided to steal yet more property from all of us? Why do YOU get to decide for everyone else?
As for the pre-existing that was an easy fix, but you libtards are more about controlling everyone so you forced us all into a crappy system.
It’s also a lie to say millions of Americans were denied health care.
Jim22 – the problem with Obamacare surviving is that the people it needs in the program are already healthy and do not need insurance. So, the govt is paying insurance co. for any losses they have incurred.
Karen
I wonder what Perino has to say about the entire contingent of the Republican Senate – and in particular the Senate Majority leader – and Cruz – and Rubio
I nominate Posner.
I got an email from the President yesterday telling me that he has a Constitutional duty to nominate a replacement and then lying about replacements made in the last year of a Presidency. He is not planning to play fair. He is going for the low information voter.
Karen
Learn the difference between BLOCKING (a confirmation) and saying the President should not NOMINATE a successor!
Blocking is constitutional.
P.S. LOVE your sources!
Isaac:
The Constitution requires an Amendment to change it. You cannot simply say it means what you want it to mean. That can have far reaching consequences. It’s not impossible to change the Constitution when it needs to be updated, such as suffrage and freeing the slaves.
So change it lawfully. Don’t legislate from the bench. That’s the antithesis of either a democracy or a republic.
Isn’t it odd. Karen finds the European health care programs ‘disastrous’..
Is it possible that her opinion is more compelling than the millions of citizens of those countries?
“How many Democrats have EVER said a sitting President was not constitutionally obligated to nominate a justice to the Supreme Court when there is a vacancy?”
May I suggest you take your own advice and GOOGLE?
http://dailycaller.com/2016/02/14/flashback-in-2007-schumer-called-for-blocking-all-bush-supreme-court-nominations/#ixzz40GznvTfT
““We should reverse the presumption of confirmation,” Schumer said, according to Politico. “The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.” During the same speech, Schumer lamented that he hadn’t managed to block Bush’s prior Supreme Court nominations.
Notably, when he made his remarks in 2007, Bush had about seven more months remaining in his presidential term than Obama has remaining in his.”
http://www.politico.com/story/2007/07/schumer-to-fight-new-bush-high-court-picks-005146
“A White House spokeswoman, Dana Perino, said Schumer’s comments show “a tremendous disrespect for the Constitution” by suggesting that the Senate not confirm nominees.
“This is the kind of blind obstruction that people have come to expect from Sen. Schumer,” Perino said. “He has an alarming habit of attacking people whose character and position make them unwilling or unable to respond. That is the sign of a bully. If the past is any indication, I would bet that we would see a Democratic senatorial fundraising appeal in the next few days.””
Where people go astray is in believing that their own political party is entirely made up of morally superior people who would never, ever, do wrong. That kind of blind faith leads people to ignore wrongdoing or errors.
And “Go! Fight! Win!” is also a football battle cry, and was used in a cute Disney movie, Sky High , granted by the demented cheerleader with super twinning ability, but still not relegated to the Bundy Group. The Bundy’s, by the way, ruined a perfectly warranted protest against government seizing land and forcing out ranch owners by deliberately flooding their property, as well as mismanagement of a wildlife refuge. But once the Bundy’s took over, all anyone heard about was the crazy people, not those who actually lived there and were legitimately protesting.
I wonder if you could answer this question – if a vote cost you many thousands of dollars a year, permanently, would you object? Would you want to avoid taking another hit? Or are you trying to get me to believe that the rationale response to such an added, permanent cost is to simply ignore it?
L’Observer – “Interesting. Your battle cry is identical to the Bundy’s – Go! Fight! Win!. It’s the battle cry of the Republicans and the people like you, and the lawless, violent Bundy followers.”
Really? Who fired on who? I guess the next time a bunch of violent hippy libtards occupy/liter/pollute/disrupt a park in NYC the Feds should just go in and shoot them.
What it comes down to is that two and half centuries have gone by. The Constitution is either dead or living. The Republicans party constantly stands as the only ones who can interpret the Constitution and they constantly state that it is not living. Somehow this all makes sense to almost half the population.
I wonder if the founding fathers are laughing or crying.
Me, I am alive and can think for myself.
And here’s another thing in which you and I represent the difference between the two parties. You were fine with the old health care. You had yours and to hell with the other millions of Americans who did not have access – including those who had pre-existing conditions. Please, don’t bother with your protests about how it made you so saaad.
Whereas, I feel that it is a horror that millions of Americans were denied access to health care. And I am happy to pay a greater premium that others may have coverage.
I think all Americans deserve health care – even if it costs me more. You don’t.
Republicans and Democrats are NOT the same.
Karen S
Interesting. Your battle cry is identical to the Bundy’s – Go! Fight! Win!. It’s the battle cry of the Republicans and the people like you, and the lawless, violent Bundy followers. That’s the place to start in learning the difference between Democrats and Republicans. They are not the same.
How many Democrats have EVER said a sitting President was not constitutionally obligated to nominate a justice to the Supreme Court when there is a vacancy? How many Democrats would ever dream of such a tactic?
How many Democratic candidates for President have advocated the United States default on its debt?
How many Democrats agree that corporations are people?
How many Democrats want to shut down the government?
No. The Democrats and Republicans are NOT the same.
Olly
The man who discovered the body explained the pillow was NOT over his face. It was over his head on the headboard. Such an arrangement of pillows is often done – especially if one wants to do a bit of reading while sitting up before falling asleep.
If there was ANY suggestion of murder from any quarter other than the likes of the insane who often post here, don’t you suppose Mitch, Orren, Ryan or any other leaders of what is left of establishment (moderately sane) Republicans would be screaming holy hell and using that as an excuse to stop the nomination process instead of the entirely unconstitutional reasoning they are currently using?
Don’t be a jerk. Use your Google…and your brain.
Isaac:
“The only purpose would be to use the process to paint the Republican party with their own broad obstructionist brush.”
Actually, both sides of the Duopoly obstruct each other to the best of their ability, because they vigorously disagree with the other’s policies. Would you expect the Democrats to cooperate with abolishing abortion? Would you expect Republicans to cooperate with lifting all limits of abortion, including partial birth full term abortion? There was plenty of Democratic obstructionism with Bush, and since many Republicans took over the Senate specifically because their constituents opposed Obama’s policies, they have to try to prevent as much damage as possible.
Neither side is Mother Theresa, cooperating and polite and loving at all times. Why would they be? They don’t agree or support those politics, and little effort at cooperation has been made by a dictator with a pen and a phone.
Personally, I would like to see the US saved from the fate of Venezuela, with its 700% inflation and food and toilet paper shortages. The socialist government tried to “help” the poor there, too. No more falling out of trees into Cadillacs for them. Now they’re all equally starving, but by golly, those evil capitalists are gone.
I recall years ago the biggest public opposition to Obamacare was that people liked their insurance policies and their doctors. So Obama told the biggest lie in history – that if you liked your doctor, you could keep your doctor. If you liked your insurance, you could keep your insurance. And you would save $2500 a year. What’s not to like? There’s zero risk in such a reasonable proposition. Except it was all a deliberate lie. Now individual policy holders pay the premium of a Cadillac policy and the deductible of a Catastrophic policy (the worst of both worlds), have far fewer doctors that accept it because it’s a 30% pay cut for them, and far fewer prescription drugs. They screwed up the insurance industry so badly, and made it so unaffordable, that more people now clamor for single payor, being oblivious to the fact that things were actually so much better before the government meddled in the first place.
So in my own experience, far Left polices are disastrous, both here and abroad. Fighting such policies is fighting to protect me and my family and the entire country from further catastrophes. So to anyone, Democrat, Republican, Independent, or politically agnostic who fights the Far Left’s agenda, I say, “Go! Fight! Win!”
Why doesn’t our jerk president nominate himself?
I agree that expanding the Supreme Court would reduce some of the panic over appointments.
I also believe that if the Supreme Court members of the Left would stop trying to interpret the Constitution as a living document, effectively legislating from the bench, then their appointments would not tip the scales of democracy so markedly.
It is not their job to legislate, and personal politics should take no part in their determination of the law. You seem to have no trouble applying that principal to your writing, often disagreeing with the actions of those you may favor politically. Why cannot the Supreme Court follow your lead?
If I had a say, I would want you, Professor Turley for Supreme Court. You could unify the country at its most divisive times. Your politics align with the moderate Left, but you have no qualms about voicing warranted criticism of anyone in office, regardless of personal politics.
The Law is the Law, regardless of politics or creed.
Gronda Morin
I concur. They desperately need more Justices with significant trial experience and from other good schools besides Harvard and Yale. For nearly all Justices, their only trial experience consists of getting a “free trial” of National Geographic or some other publication.
hinkydinkkenna
You nailed it. If Cruz successfully leads the opposition to a middle of the road nominee this year and a more liberal judge makes it to the Supremes next year, Cruz will once again endear himself to his Republican colleagues.
I’m waiting for the conspiracy theorists to announce that the person who pronounced that Scalia died from natural causes is a space alien secretly working for the United Nations. Never mind that, before rendering his opinion, this person spoke to Scalia’s personal physician and was told that Scalia had heart problems and high blood pressure and was deemed too unhealthy to undergo shoulder surgery.
I always lean towards doing what is right for the country despite the obstacles. This time, I would prefer a centrist with prior trial experience for the defense. It would be great to place a jurist with a law degree from another great law school like University of Michigan, NYU Law School, University of Chicago instead of just Harvard or Yale. The nominee should have a reputation for being highly ethical with a love for the law and what it can do to insure a level playing field for all (within the constraints of the constitution, precedents etc…. Unfortunately, I am not the president..
Laugh at the idea of Obama nominating some Republican judge.