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
Slow learners or slow readers might “accidentally” leave out the “by and with the advice and consent of the Senate”.
If your going to ” rule” on this constitutional issue, don’t cherry pick just the phrases you like.
Let’s try to clear up something for the slow learners out there. Article !! says…
The president SHALL (the use of ‘shall’ is an important point) nominate a candidate for the vacancy.Once the president names a nominee, the process moves to the Senate. The fate of the nominee is now in the hands of the Senate. They now hold all the power. This is stipulated in the Constitution. I’m in full agreement.
If the Senate denies confirmation, it is fully within their constitutional power. I support this.
If the Senate confirms, this, too, is fully within their constitutional power. I support this.
The final decision rests in the hands of a Republican Senate.
Constitutionally, they can deny or confirm. No problem.
Slow learners. The Senate can deny the confirmation.
Get on with it.
he shall nominate, and by and with the advice and consent of the Senate … Judges of the supreme court …
L’Observer……YOU brought up the issue of Obamacare. Don’t talk about “before we bring up the issue of Obamacare” when you already brought it up.
On the confirmation/lack of confirmation of federal judges, I know that this has been an issue going back to the Bush 43 and Clinton years. Tactics including filibusters or killing nominations in committee were used by Leahy and co. When they had a majority.
“It’s just the Black guy that seems to be having these problems” is just another one of your many distortions.
You’re not paying attention. I’ve responded to this bogus charge. Do try to keep up.
Karma is payback – tit for tat.
Bush and Clinton had many more confirmations.
It’s just the black guy President that seems to be having these problems.
But I’m sure it has NOTHING to do with congressional Republicans meeting 1/20/09 and deciding that the black guy would be a one term president and ANYTHING he attempted to accomplish would be stopped, which Mitch so thoughtfully announced to the world the next day.
The lack of federal judge confirmations is not karma. It is the refusal to govern. Hold a hearing. Confirm or deny. Just govern!
L’Observer – Chuck Schumer in 2007
http://www.washingtonexaminer.com/schumer-in-2007-dont-confirm-any-bush-supreme-court-nominee/article/2583283
FOIA is BS.
Maybe if Obama turns white or becomes a Republican – then he will get his judges
Only a fool or a liar resorts to a FOIA reason.
Not that anyone here is a fool or a liar, of course.
Karma is a bitch.
tnash
Before changing the subject to Obamacare, how about we settle the first question?
When did Article II get repealed or revised?
Yeah. For those of you from ChiTown it is a hit and a miss when Harry was in Saint Louis for the Cardinals but then he came to the Cubs and it was …. Holy Cow!
But Mitch McConnell is more like a barncleaner at the race track in Louisville. He just called the game on the Supreme Court nomination. The next President will nominate Monica Lewinsky and then Bill will become an Assistant Attorney General arguing cases in the Supreme Court. And Harry Carey would say….
Dave:
Holy cow!!
Fly ball to right field, the Republican right fielder Mitch McConnell is out there, he is at the wall, it is going, it is going, …. Its Gone.
–Harry Carey.
The “Cornhusker Kickback” and the “Louisiana Purchase” helped the Senate “get on with it”, as you say, in a dead of night passage of Obamacare.
Real ” transparency”, L’Observer. You are also fond of mentioning the 2008 and 2012 election results…….you should look at the 2014 election, as well.
Do you notice how
all of those Democratic candidates embraced Obamacare in their campaigns?
They ran like scared rabbits away from the legislation that they shoved through. And the Republicans now control both houses of Congress.
The 2008 and 2012 elections don’t change that.
l observer……..you have yet to spell out the type of obstructionism you’re OK with, and the type of obstructionism you object to.
E.G., filibustering to prevent a vote, the 2006 Obama strategy. OK by you, since a name was placed in nomination prior to the obstructionism?
“Borking” or otherwise smearing a nominee, as long as the nomination was technically taken up by the Senate?
In your mind, or these tactics preferable to not accepting a nominee for consideration?
So far, your “it depends” kind of statements on your view of the Senate’s responsibilities have hinged on whether Democratic or Republicans are obstructing.
Try being more specific, and more consistent.
l oberserver ….You stated about 12 hours ago “I’m done”, evidentally in reference to future postings on this column. 15 or 20 postings later, you’re not done. But that’s OK. I have the feeling that the Schumer/Leahy/L’ Observer wing can’t really help themselves in trying show why obstructionism is simultaneously good and bad.
Very lame indeed, but entertaining to see the tortuous verbal gymnastics, hypocrisy, selective memory all working in such great harmony. Hope Schumer, Leahy, you and others keep it up.
Maybe increasing your daily postings from 2-3 dozen to 50-100 would help to further ” clarify” your position(s).
Here’s an example of how Democrats understand the Constitution and the importance of governance.
Remember 2009? Obama first days in office? Wanted to get a lot of important legislation passed. The Democrats had a filibuster proof Senate (once the Republicans stopped crying about Franken). That would be very important in advancing legislation, right?
What happens at the ending of August? Kennedy dies. Poof goes the filibuster proof Senate. MA had a Republican governor who was entitled to appoint a new senator to replace Ted. And replace he did. With the Playmate centerfold, Scott yBrown.
Did the Democrats throw a screaming fit? Did 59 Senators hold a press conference and say it wasn’t fair? Did 59 Senators ask the governor to wait 12 months to fill the seat? Did they threaten to sue? No. They knew the rules and got on with it.
The Republicans are a bunch of whining hacks.
Here’s another thing, tnash
How many federal judges are sitting out there still awaiting confirmation? Why is that, tnash? Why is the Senate not moving on those, tnash? Don’t they know their job? Can’t they govern? They took the oath. Are they traitors? Are they shredding the Constitution?
Or is it just that Kenyan Muslim communist homosexuals aren’t really the President?
I also think there is an ambassador still awaiting confirmation.
Republicans are vile, lying, idiotic, hacks.
L’Observer – the Senate has holds on several people waiting for the Obama administration to comply with FOIA requests. When they get the paperwork, Obama will get his judges, etc.
L’Observer
1, February 18, 2016 at 5:48 pm ”
For your Information, I known exactly what a piece of sub-human piece of crap looks like & that they are incapable of understanding the links I present or any other coherent argument that is presented.
Pound Sand Phker, I know what senseless war is, & it’s you & your family Lose!
https://www.youtube.com/watch?v=DoE6Hq9sNKc
Here’s another thing I ran across, tnash…
“The Senate has never taken more than 125 days to vote on a successor from the time of nomination; on average, a nominee has been confirmed, rejected or withdrawn within 25 days. When Justice Antonin Scalia died, 342 days remained in President Obama’s term.
Got that, t? Never more than 125 days. Obama was elected President by a margin of 20 million votes. His term lasts until 2017.
As Nino would say: Get over it!
(Jeez. Have you ever seen a bigger bunch of whining moaning tantrum throwing babies in your entire life?)
Schumer and Leahy = 2
PLUS Schumer was talking about blocking a nominee in the confirmation process. We’ve been over this. You are wrong.. Mitch and almost all of the Congressional Republicans (let’s call it 300 idiots) are insisting that Obama should not even think about nominating anyone – a constitutional duty as I have pointed out.
PLUS, what is the precedent for neglecting a mandated constitutional duty? What other President has ever made such a move.
PLUS, how long are you willing to leave the Supreme Court with a vacant seat? Is two years too long? (I’d check with Roberts before I gave my opinion)
PLUS, is this your model of good governance?
PLUS, is this was Mitch promised us when he said he would do such a splendid job in running the Senate?
PLUS, how can you call this anything by political hackery.
The Senate can deny confirmation to any nominee. I understand that is entirely permissible and I will accept the result without calling for a revolution..
The President SHALL nominate someone to fill the vacant seat.
You remain unconvinced? No problem. You’ve got a place in the lineup of shameless fools of the highest order.
Sen. Schumer shot himself in the foot, then shot himself in the kneecap trying to squirm out from his documented support of obstructionism to block any Bush nominee. Then lecturing McConnell and co. about their offense of obstructionism.
This is your party, L’Observer. Keep people like Schumer and Leahy out there sticking their feet in their mouths, and be prepared to frequently change their bandages from their self-inflicted wounds.
Continue using the same “Schumer-Leahy dodges” in your posts. It’s as entertaining as watching those guys stumble over their own words.
There is every possibility that no nominee named by Obama will get confirmed by the Senate. I accept that. I understand how the process works and like most Democrats, I will accept the outcome without calling for a revolution or the impeachment of Mitch McConnell.
In fact, once there is a confirmation, there will be a special joy because every Republican Presidential candidate (except Carson), all 54 Republican senators and hundreds of members of the House have shown themselves to be shameless fools of the highest order.
This is your Party, gentlemen! Embrace them (and be prepared to have to change an occasional soiled diaper).