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
Gail Collins of the NYT has a great lede….
Republicans See How Long They Can Hold Their Breath
Me, I wouldn’t venture a guess how long they will hold their breath. I’m pretty sure we could still find a few Republicans that say the Earth is flat.
Excuse me. It also includes Jeff Sessions and Senator Grassley.
Try to get over it, guys!
Oh my! Watch GWB, Mitch, and Orren call for a Supreme Court vacancy in an election year to be quickly filled.
L’Observer has been here for a long time under different names. The lameness is the tell.
So it turns out that Scalia was every bit the money grubbing quid-pro-quo huckster that Clarence Thomas is.
His trip to Texas was paid for by parties who had business before the court last year, and whose case was dismissed. Scalia ruled in their favor.
Such high principles. Such a strict something-or-other! What argle-bargle BS is this.
And John Roberts is responsible for gutting ethics on the high court. Another sad piece of work.
No. I do not know what a political voyeur is, particularly with regard to this blog, and if I am your target and your use of voyeur is appropriate, it should be easy for you to describe how I am a ‘voyeur’. Now do it.
Further, where is the ad hominem?
Olly
Our government has been charged to provide for the general welfare. That pretty much covers public services. That’s my opinion and the rule of law for the last 250 years pretty much backs up my opinion.
You disagree. Get Turley to sue the Congress or the President. I will comply with the rule of law; unlike Republicans who do not wish to comply with the rule of law and many call for revolution.
I thought your use of ‘loss’ was in reference to a financial loss which was what Jim was talking about. Effective and efficient can be considered separately I have done so. I have listed several private companies that have fallen woefully short of effective and efficient in providing public services.
I have NOT said that the government has failed in providing public services. You have completely misunderstood me, if you believe that. I think they have done a very good job with many services…
Mail gets delivered six days a week, medicare is terrific, medicaid provides for millions, social security is a life saver, when Congress does its job bridges and roads are built and repaired, planes are not crashing, food is pretty safe, when outbreaks occur they are tracked down, cars are built with seat belts and get much better mpg, there is no more lead in gasoline or paint, vaccines are provided, Ebola is managed, the poor don’t have to die on the street, there are beautiful National Parks, there is unemployment insurance, there is CHIP, there are free school lunches, our garbage is picked up, most people in this country have potable water, there is a fire department, a police department, a library, 911 service, public universities, and on, and on, and on.
You believe that privatization will prove to be more effective and efficient. Prove it. Show me that money is not their primary goal. Show me CEOs of our big companies that don’t make huuuuge salaries. We’ll have to pay for that, you know. They have to provide a return to their stockholders.
FDR (Franklin Delano Roosevelt) presented a “Court Packing Plan” which proposed to add several more Justices who by the way would vote for the New Deal. Since then we have done pretty well with the original 9 number. I could not imagine an oral argument with more of those questioners up there, particularly four more Scalias.
American West, eh? Well that is an impressive and authoritative educational body. Perhaps it is not too late to have your name submitted to the Association of Illiterates as Teacher of the Year.
The second definition of voyeur – (while your usage omitted the adjective ‘political’) is argle-bargle and explains nothing. Who is writing about anything that is private?
Turley assures us millions read this blog.
Wait! We’re getting a new talking point from the Republicans…
“Now, recalcitrant Republicans are shifting their arguments and trying to convince Democrats that because the hearings are doomed to fail, making someone go through them would be unnecessarily cruel.
“I think that hearing would end up very politicized. And I don’t think it would be fair to the nominee,” Sen. Ted Cruz (R-Texas) said Wednesday during a CNN town hall event.
“It would be a denigration of that person’s reputation not by Republicans — I think more by Democrats than Republicans,” added Sen. Orrin Hatch (R-Utah) during an interview with radio host Hugh Hewitt on Wednesday.”
Republicans are priceless! They swear they will tear a nominee apart and it will be Democrat’s fault..
Further, it is idiocy to suppose ‘advice’ means the President must consult and accept the opposition’s advice before he can name a nominee. Ha! If those are the constitutional demands we would now have three vacancies on the Court! You gonna expect me to believe that Mitch would have accepted ANYTHING or ANYONE suggested by “One Term Obama”? Hell, forget Mitch. Do you imagine that these days ANY Republican Senate would allow ANY Democratic President to name someone to the Court?
Or there’s this. He IS seeking advice from senators. He’s talking to Reid, Warren, Boxer, Wyden, etc. Or is YOUR rule that he must consult and win the approval of Mitch McConnell?
Idiocy. Incomprehensible idiocy.
Evidently you are unaware that “political voyeur” is an example, not a definition. Interesting ad homemin. When you cannot kill the message, kill the messenger.
I’ve long been tempt to adopt this position below:
http://www.zerohedge.com/news/2016-02-16/guest-post-abolish-supreme-court
A nominee from the Ninth Circuit? Pleeease! Or Loretta Lynch? I may have to move the “yardarm” up a couple of hours.😖
Just to make you angry, I was named America West Airlines Teacher of the Year.
L’Observer,
“Effective”
“Please define effective.”
You’ve already admitted to “how many government bureaucracies are operating at a loss.”?
“All of them Olly. The budget isn’t balanced.”
I’m obviously not as smart as you are because your logic is blowing my mind. You and I are agreeing that government has proven absolutely INEFFICIENT AND INEFFECTIVE in providing services that easily could be run in the private sector. Yet while I submit we stop the wasteful government bureaucracies, you propose we continue to do more of what is obviously failing.
There are legitimate purposes for government and one only need to look at the constitution to guide them. The rest is supposed to be left to the states and the citizens (private sector). We are long passed the point of running out of other people’s money and deep into the pockets of earners that have not even been born yet.
So tell me again why your progressive bureaucracies are working?
L’Observer:
You have misunderstood the CIA website you referenced.
Net migration is determined on the website per 1,000 people. Therefor, sparsely populated countries, by definition, would have higher immigration ratios. (If you live on a deserted island with a population of 1, and 1 other shipwreck victim floats in, you have a migration rate of 100%, because your population just doubled.) In addition, there are countries near areas affected by war, famine, and disease.
Our net migration is far higher, and our standards are quite lax compared to Norway, for example, where a criminal conviction automatically disqualifies you for residency (non asylum) status, you must not have let your residency status lapse, and you must demonstrate proficiency in the Norwegian language. Otherwise, you get deported and your application for citizenship is thrown out.
In other words, if you immigrate to Norway illegally, forge documents in order to work there, you will be deported and will be barred from citizenship.
Other nanny state countries require you to show that you have a job ready and waiting for you when you arrive.
Obviously nanny state countries have to be stricter about immigration requirements, because otherwise they would be flooded with benefits seekers, and they would not be able to afford them.
https://www.udi.no/en/want-to-apply/citizenship/citizenship-for-people-who-hold-a-residence-permit-in-norway/?c=usa#link-578
So in addition to not understand the term ‘advice and consent’ you also appear to not understand the meaning of the word voyeur.
And Arizona let you teach high school. Pretty damn sad.
Some people only know one definition for a word. Here is a second definition for voyeur.
2
: a person who likes seeing and talking or writing about something that is considered to be private
◾political voyeurs
Oh. So is that where you learned the term ‘ultrasubcretin”?
Speaks volumes about the quality of teachers in Arizona. That, and your analysis of the President’s constitutional duties.
Obama cannot gamble that the Republicans will back off their threat. If he nominates a moderate, the Republicans can confirm him or her. Doh!!
The President will nominate a series of far left persons and, when each is rejected, blame it on Republican stonewalling. After embarrassing the Republicans, he may in the end nominate someone who can actually get confirmed. BTW, Chief Judge Garland would be an excellent selection, notwithstanding that the Court already has two justices from the D.C. Circuit. Judge Diaz from the 4th Circuit, another name I have read mentioned, would also be an outstanding choice.
McConnell’s gaff notwithstanding, the President could get a nominee through the Senate quite easily if asked not only the “consent” of the Senate, but also its “advice”, something no President in my memory has done.
I lose? Just where did I lose? Where exactly is the ad hominem?
You have given us ‘your’ explanation of how Obama is shredding the Constitution. Oh. wait. Except you now say it is Chuck Schumer’s explanation. However, he was talking about the Senate blocking the nominee.
We’ve been over this. You have not shown how YOU find that Obama is shredding the Constitution by naming a nominee.
So far you’re losing.
Voyeur – Obama is ignoring the advice of the Senate, hence shredding (your term) the Constitution. Personally, I would say Obama has no idea what the Constitution is.
It is always a waste of time to correspond with PCS. I must remember this.