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
“What an idiotic retort – “how many government bureaucracies are operating at a loss”?
All of them Olly. The budget isn’t balanced.”
Idiotic, bordering on insane, is to pump MORE money into bureaucracies that are inefficient, ineffective and largely unaccountable for their failure to manage themselves. We have tried it the progressive-way and it DOES NOT work, why wouldn’t it make sense for once to “bet” on the private sector?
I love it!!!
The Pope prays at the border and heads explode.
Some people are afraid of EVERYTHING!
L’Observer – my head didn’t explode, however Trump is p**sed. Supposedly we have the Separation of Church and State thing. It is not the job of the Pope to interfere in United States politics. If he wants to invite illegal aliens to the Vatican to stay, that is his call.
“I’m betting Fed EX and United Parcel have NO desire to deliver mail to the entire state of Wyoming for starters.”
That’s what progressives do; they “bet” they know better and run with it. Before you know it, the bureaucracy is in place, “underfunded” and in need of “investment” to modernize its operations.
What Fedex and UPS do well is get the packages/mail to their delivery point efficiently and effectively. It may be that the the best use for the USPS is to run the counter and let the private sector do everything else.
Olly
How many angels dance on the head of a pin?
You construct one straw man after another. You’re being a jerk. I’m done.
Olly
What an idiotic retort – “how many government bureaucracies are operating at a loss”?
All of them Olly. The budget isn’t balanced.
Now what do you propose? Do you want to shut them all down?
So no trains. No FAA. No VA. Shall we start with them?
L’Observer – some states, like Arizona, are required by their Constitutions to run a balanced budget.
“Net migration rate compares the difference between the number of persons entering and leaving a country during the year per 1,000 persons (based on midyear population).”
The rate will of course be higher for countries with lower overall populations. How many of those countries allow illegal immigrants to stay and be supported by the state? How many allow illegal immigrants to commit crimes and be protected from the federal government for deportation? How many are required to prove they will be able to support themselves before being allowed to stay? How many of those listed above are currently enjoying the fruits of their immigration policies?
Jim22
I’m betting Fed EX and United Parcel have NO desire to deliver mail to the entire state of Wyoming for starters. And won’t be interested in making deliveries to Dust Bunny either.
I live in a BIG city. Yesterday the US Post Office delivered a package that United Parcel had delivered to United States Post Office to deliver to my door.
You have NO idea how the post office runs. And do check out what the Republicans have done to deliberately screw up the finances and won’t allow them to innovate in order to make them more financially stable.
Karen
You have no idea of what you are talking about. Immigration? BS!
All these countries have greater immigration rates than the US -at least according to the CIA
Austria
Sweden
Italy
Ireland
Spain
Canada
Norway
https://www.cia.gov/library/publications/the-world-factbook/rankorder/2112rank.html
L’Observer – it is not the rate that is important. It is the number of immigrants you are taking in. We have both illegal and legal immigrants. Now we have Pope Francis sticking his nose in. I never thought liberation theology would hit the Catholic Church, but it has.
L’Observer,
How many of these government bureaucracies are not operating at a loss?
Really, The USPS and Amtrak both run yearly deficits. And yet UPS and Fed Ex can operate successfully and aren’t allowed to deliver mail.
Please inform me what the bankrupt DOT has innovated on cars over the past hundred years to make them safer?
My relatives feelings have little bearing on how I feel about the govt. stealing my property and giving it to lazy people who made bad choices. I can save for myself. I guess you still need your mommy and daddy.
bettykath,
The constitution was designed to be amended as our culture evolved. It was written for a culture that would ratify it as is, with the mechanisms in place to amend it. The vision defined in the DoI was right at the time and is right today. It has always been the gap between where we wanted to be and where we were that was/is to be managed (administered) THROUGH a constitutionally-limited government. That is the process of becoming “a more perfect union.”
Unfortunately it has been the progressive movement that didn’t have the patience for either the constitutional process or the will of the people. I get that people want us to progress through our cultural failures, whatever those may be, but we cannot save our republic by abandoning the law. It would be like trying to force someone into a healthy lifestyle by infecting them with ebola virus.
Jim22
Please consult with your parents, grandparents, and great-grandparents, uncles, aunts, great uncles and aunts regarding the benefits of Social Security.
Amtrak is a wonderful way to travel, the USPS delivers my mail each day, and I prefer to fly on planes that are regulated by the FAA and drive on roads in vehicles whose safety is regulated by DOT.
If you don’t find those protections necessary, you are another of the insane that populate this space.
Karen
May I draw your attention to quotes of your own citation of the ‘Canadian crisis”
” what’s standing in the way of preserving universal health care for generations to come.
” It may be our most cherished social benefit…”
Canadians want to preserve their national health care. Try the Daily Caller. I’m sure you can find some conservative Canadian who wants to kill the program.
USPS, Amtrak, Social Security and the DOT are all such shining examples of govt. Makes me wonder what happens when the lazy dumbed downs outnumber the apparently rich L’Observer’s?
“The Constitution is either dead or living.”
You’d have to be a moron to think it is either. It is a DOCUMENT that represents THE LAW. The only thing dead or alive is the electorate’s civics literacy in defending it. And for that we are on life support thanks to stage IV progressivsm.
I find your (JT) arguments about the size of the court to be compelling. Good article here.
Scalia was consistent. He interpreted the Constitution as it was in the 18th century. The Federalists won the debate. The Constitution was designed for the landed white men, no others. So continuing to disenfranchise women and all minority groups and the poor was part of the consistency. He apparently didn’t believe that people could evolve. He certainly didn’t.
Karen,
Remember, people like us have the Constitution on our side. People like L’Observer want it to be between R’s and D’s and still believe that there is a difference between them. The real fight like you pointed out is against people who can’t grasp the constitution and how it limits the govt. History is also on our side that what made the U.S. great was not big taxes and over regulation. We have been in a constant decline since those policies were implemented. You will never get them to recognize their failure though since it is to big and tough of a pill for them to swallow. Just how funny is it when they point to Europe? I say, let’s pull out all military support there and let’s see how well they can support their socialist programs.
Karen
Congress finally did something. The 30% pay cut was fixed. Last year. You are an uninformed citizen.
http://www.medscape.com/viewarticle/843078
Karen,
I have already told you I am happy to pay more in order that many millions more Americans have access to health care. Happy .To Pay More. I also would be happy to pay more if it meant all Americans were entitled to an affordable college education.
You,are not.
Therein lies our differences. As a start, anyway.
Further, you are acting as though your insurance premiums would never have increased without ACA. I suggest you go over the last ten years of insurance company increases.
L’Observer:
You should really make more of an effort to research how Obamacare has affected us. You can claim moral superiority all you like, but what you’re essentially doing is saying someone is wrong to object to thousand of dollars in higher cost every year, less doctor choice, less time with doctors as they take a factor model to make up that 30% pay cut, less prescriptions available…
Rational, reasonable people object to this.
Socialist healthcare systems ration health care in order to cut down on costs. So you have long wait times or you don’t get it done. Only the rich or upper middle class can afford the huge taxes that pay for socialized health care, as well as private health insurance so they can actually be seen in a timely manner. Or they fly to other countries for care. So, again, only the well off get the best care. Plus, if you research this issue, such socialized medicine is rapidly running out of money. It’s often in the news in Europe and Canada.
And what’s the other big difference between us and Europe? We have far higher rates of immigration. If you’re going to increase services to the nanny state level, you have to shut down immigration to a trickle, as they have done.
Why don’t you GOOGLE “health care crisis in Canada”?
http://www.canadianbusiness.com/business-strategy/the-worst-run-industry-in-canada-health-care/
Please do not subject us to another huge financial hit, based on a lie, as you did with Obamacare.