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
Build a section for the disabled children? Can you possibly believe that is a way to serve these children?
Should we expect signage that says “Downs Syndrome Kids – Room 203”? Or will we rely on your language “Ultrasubcretins – Room 203”?
L’Observer – before I started teaching high school full-time, I substituted in the severely disabled section at Tolleson High School in Tolleson, Arizona. It had rooms specially designed for the students and a teacher-student ratio of 1 to 8. They were going to be there until they turned 22, which is the law in Arizona. They lived at home at night and went to school during the school year. The group I was working with were incapable of learning language, etc. so we worked with them on life skills all day. BTW, even though they were all high school students, they were all in diapers and usually had to be changed at least once a day (that was not my job). They also participated in P.E. which was interesting since most were in wheelchairs.
Every large high school has special ed classroom divided by the level of need. Some students can be mainstreamed for some skills and some need extra one-on-one help.
phillyT
“I hope he nominates a true liberal justice and let the Senate Republicans show what true hypocrites they are.”
I assume because ANY liberal judge is going to be as pure as the driven snow. You seem hell bent on sleeping through the 21st century.
Ultrasubcretin?
Very nice. Obviously a man well suited to the care and teaching of children.
L’Observer – I have trouble dealing with voyeurs. One thing I have learned about you is the minute you lose you go to ad hominems.
The Senate is to advise and consent on the nominee. If it is at all possible, do try to not be a jerk.
However, it is good to see the way you arrive at your analysis that the Constitution is shredded. Should make it clear to all your reliability as a commenter.
L’Observer – I am only repeating what Chuck Schumer said some years back when the shoe was on the other foot.
I suppose thousands of companies have found it more effective and efficient to move to another country.
I suppose we could name many companies that would find it more effective to pay workers $5 an hour.
I suppose we could find some company that would find it efficient and effective to hire 10 year olds.
I know we can find one company who found it effective to add cellulose to cheese.
I suppose we can find lots of charter schools that find it more effective to refuse disadvantaged and disabled students.
I suppose we can find a company that found it more efficient to not pay particular attention to the grounding of electrical wiring in soldiers showers in Iraq.
Better tighten up those contracts, Olly!
L’Observer – when you have a school of 3000 it is easier to take on disabled students, even build a section for them. When you have a charter school with 125 students, you really do not have the money for heavy duty special ed. The child is better served in a larger school. You can handle that ADHD, you can handle the gangsters, you can handle the pregnant teens. However an ultrasubcretin is beyond your capabilities.
L’Observer – “I’m a pacifist. Why should I pay for the military?
I’m an atheist. Why should I support the churches?
I’m a Christian Scientist. Why should I support the hospitals?
I’m a vegetarian. Why should I support meat inspection?
I grow my own food. Why should I support food inspections?
I don’t read. Why should I support libraries?
I don’t have children. Why should I support schools?
Beginning to see the problem, Jim?”
Yes I do, the govt. is to big and yet you still need them to be your daddy.
L’Observer- “Pay as you Go, eh Jim? That’s what you want? Is that the way you run your life? Did you pay cash for your house? for your car?
How about corporate America? Should they also Pay as They Go? No more loans for innovation or growth?
How about cities? No more development until they have cash on the line?
How about sport stadiums? No more new ones until the team has cash?
How about wars, Jim? No more wars that aren’t paid for?”
Non of this makes any sense but here we go….
No I didn’t pay for my house but I pay a private bank interest for lending me the money. What’s you point?
If companies take a loan they should pay the interest for doing so. What’s your point?
Cities again, if they borrow money they need to pay it back with interest. What’s you point?
Stadiums? No, the public should not fund them.
Wars and defending the country is one of the few things the feds are constitutionally supposed to do.
Tell me, Carl, is the fact that your presumed candidate is a minority that you find it unacceptable?
Effective?
Please define effective.
Effective for whom? The citizen? The prisoner? The company?
Effective is built on sand – quicksand.
Thank god you guys don’t run the government.
I would love to see someone here write two or three lines that explains how it is UNCONSTITUTIONAL for Obama to nominate a justice for the Supreme Court.
For further edification, you might want to read about John Adam’s nomination of Marshall to the Supreme Court.
L’Observer – Obama is to appoint with the advice and consent of the Senate. The advice was do not nominate. So, he is again being unconstitutional.
Neither. He will pick a minority candidate he knows, is totally unacceptable. A final FU to the gop and congress.
L’Observer,
You coveniently left out the word “effective” from my comments. For businesses to survive they have to do both. When government bureaucracy replaces business they don’t have to do either. $19 trillion in debt should be proof enough that it’s not working but apparently that is not the measure of efficiency and effectiveness in the public sector.
To all who consider the 36 other countries that rank as having a better health care system than the US as being disastrous this is the analogy. The mother of the soldier marching out of step with the rest, “Look at my son, the only one in step.”
It is an accepted fact by almost all Americans, including politicians, that the US health care system costs too much, delivers too little, and is woefully inefficient. The only way they differ is as whom to blame.
The French system is ranked near the top. The Canadian system is ranked 9th. The US system is ranked 37th. These rankings are done by the World Health Organization. Of course a real American doesn’t listen to anyone except that little guy on the tip of their nose.
I am intimately involved with the BC Med system and the sewer that is the US system and can tell you the US participant is subsidizing unnecessary jobs and exorbitant salaries, not to mention profits for investors.
Jim22
I’m a pacifist. Why should I pay for the military?
I’m an atheist. Why should I support the churches?
I’m a Christian Scientist. Why should I support the hospitals?
I’m a vegetarian. Why should I support meat inspection?
I grow my own food. Why should I support food inspections?
I don’t read. Why should I support libraries?
I don’t have children. Why should I support schools?
Beginning to see the problem, Jim?
L’Observer – I have posited several times on this site that the income tax return come with a check list of the things we support, so our money will only go to those things. That way I do not feel the govt is spending my money in a manner I do not approve.
Pay as you Go, eh Jim? That’s what you want? Is that the way you run your life? Did you pay cash for your house? for your car?
How about corporate America? Should they also Pay as They Go? No more loans for innovation or growth?
How about cities? No more development until they have cash on the line?
How about sport stadiums? No more new ones until the team has cash?
How about wars, Jim? No more wars that aren’t paid for?
L’Observer – I did pay cash for my house, but that left nothing for a car. 😉
Sure, Olly.
Let’s make public services dependent on efficiency. Good Plan.
No mail today, Wyoming. It’s not efficient.
No water today, Flint. It’s too expensive..
Privatize the FAA. Then decide that it is inefficient to have controllers work on Saturday and Sunday.
Privatize the prisons. Then decide that it is more efficient to serve only one meal a day.
Privatize the parking meters then TRIPLE the parking rates.
You have no sense of citizenship if you do not see the problems created by privatization of public services.
L’Observer – mail is now delivered to the nearest community rather that rural post boxes.
L’Observer – “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?”
No, what I want is for Amtrak to charge a rate for a ticket that allows them to at least break even instead of taxing the public who do not use the train so that they can keep on being inefficient.
I want the post office to charge what it really costs to mail junk instead of stealing from others so that some public employee can retire with a huge pension.
Privatization is ongoing, Olly. Sorry you haven’t noticed.
Try the prisons. Try the use of mercenaries in Iraq. Try the Chicago parking meters. Try the charter schools who do not have to report their finances. Try the suppliers to the military.
Private companies want to make money – the more the better. That is their only concern. They have no loyalty or obligation to the citizens of the United States. They care only about money. They have moved whole industries out of this country in order to make more money.
It’s interesting L’Observer that when I say progressive you go on a rant about Republicans. I don’t believe you have a clue what a progressive is because they are in both major political parties. Additionally, USPS was contracted to make the delivery ONLY because they could NOT ship it efficiently. They’ve outsourced to some degree and that is a good thing. We could use a lot more of that and leave a very small bureaucracy as oversight.
Olly,
The private sector WILL NOT DELIVER TO ANY PLACE WHERE THEY DON’T MAKE MONEY!
That eliminates Wyoming and large portions of the rural United States.
THAT’S what you;ll get if the Republican Congress has its way.
And betting? Yesterday’s delivery to me is not betting. It is an example. I live in a BIG city. United Parcel did not deliver to my home. The USPS had to make the delivery.
And betting? Show me this shredded Constitution you keep talking about – show me all the confiscated guns, show me a Texas taken over by the feds, show me the FEMA camps, show me the Muslim President, show me the clergy forced to marry gay couples, show me the people marrying their dogs, show me the voters that are committing fraud by impersonating another at the polls.
You show me yours and I’ll show you 54 Republican Senators that two hours after the death of Scalia were willing to rip up the Constitution!!!
L’Observer – the advice of the Senate is not to nominate. Obama is the one violating the Constitution.