The Supreme Court Vacancy: Will President Obama Seek A Grand Slam or A Sacrifice Fly Nominee

275px-Sonia_Sotomayor_on_first_day_of_confirmation_hearingsBelow 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.


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_SrinavasanSri 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.


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_LynchLoretta 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

171 thoughts on “The Supreme Court Vacancy: Will President Obama Seek A Grand Slam or A Sacrifice Fly Nominee”

  1. Replicates! That’s IT, Philly! Hillie hasn’t dropped that one on us yet.

    Nice piece of writing, Philly.

    I don’t know if we should encourage the woman or call her relatives and urge them to take care of her.

    Turley sure attracts the certifiable. Unfortunately, they outnumber the sane here.

    Gotta run. Gotta read how Pai Ajit is all ‘concerned’ about free speech.

  2. World’s dumbest murderer. Smothers Scalia and then forgets to put the pillow back under his head.

    I’m sure this is just another Obama false flag operation. Or something. Scalia’s probably not really dead. But he realized that his Jade 21 Helmet was not fitting right and he wanted to go to FEMA camp with his new boyfriend so he has a secret meeting with Obama, because no one would ever expect THAT, right? Except Alex Jones and Glenn Beck are there too somehow, and Obama gets word that they are coming and has them both smothered too and replaced with exact replicants because the government can do that now and don’t think they can’t because what DO you think they’ve been doing at Area 51 if not making use of alien technologies, but you know the biggest problem is how to make it look like WE invented the technology and that it’s been a smooth transition from one invention to another over the years but then you get someone like Steve Jobs who jumps ahead in line so they have to give him pancreatic cancer and get him out of the way because otherwise he’ll encrypt the phones and THEY won’t have access but it turns out they don’t really kill Steve Jobs either that in fact HE is the ONE Scalia is having an affair with and they are on this ship that never goes to port so it can’t be found and they have this secret invisibility shield that the secret government has been running for years and don’t be fooled into thinking there isn’t a shadow government because there’s this video that got put up on YouTube and then THEY had it taken down because it showed the truth about government viruses and experiments they’ve been doing on mind control and why is there an ambulance outside my house and who are those men in the white coats?

  3. L’Observer/Tom Nash ….”you wouldn’t BELIEVE the stuff they have thrown at Obama. Jeez. It wasn’t two hours ago that I read he was a homosexual prostitute. Shocking, eh?”

    Terribly terribly shocking. Speaking of which you won’t believe what just happened to Obama. Unbelievable it is.

    “Any one of these ‘coincidences’ when taken singularly appear to not mean much, but when taken as a whole, a computer would blow a main circuit if you asked it to calculate the odds that they have occurred by chance alone. Sit back, get a favorite beverage, and then read and ponder the Obama-related ‘coincidences’ … then super-impose the bigger picture of most recent events i.e. Fast and furious, Benghazi, the IRS scandal and the NSA revelations … then pray for our country.”

  4. L’Observer……..sorry you find it so complicated to track down the Washington Post piece I referenced. But as I said before, if doesn’t matter to me if you are incapable of reading or understanding it ( or finding it).

  5. Besides the courtesy of a link, it would have been thoughtful if you had provided the name of the author.

    So I amend my statement.

    No links? No author? No read.

    I hope that’s not too complicated. .. or demanding.

    1. L’Observer – you don’t give your name. Hard to take the word of someone who hides behind a pseudonym.

  6. tnash

    Link it if you want it read. No links? No read. Simple.

    The rest is all stuff you have said before. I shall never recover from such biting and devastating criticism.

  7. L’Observer …….I really didn’t care if you read the piece in the Washington Post or not, or if you understood it.
    I mentioned it so that others could get opinions from constitutional law experts, other than yourself.
    I would explain the difference between “racism” and “playing the race card” to you, but it would be a waste of time.
    As I said earlier, I look forward to the Leahy/Schumer/Observer faction continuing to debate itself. I appreciate political humor, even when the source unintentionally and repeatedly provides it with self-contradictory statements.
    Comic relief has its place even in the midst of debates over serious issues. Keep up the good work!

  8. tnash

    This is like talking to a three year old.



    That is the Senate’s job. It is called governing.

    If they choose to tie it up in Grassly’s committee, that is fine with me. As I said it is in their hands. If they choose to cut it into little pieces and make it the center of an unusual practice, that is okay with me. It is in their hands. If they choose to take it to the loo and leave it in the urinal, that is fine with me. It is in their hands..

    I assume it will be alright with you if it is reported in the Washington Post.

    As the the President…

    The president SHALL make the nomination.

    That’s his job.

    The Senate can do whatever they choose.

  9. “The Constitution does not require the Senate to give a judicial nominee an up or down vote” – Washington Post, Feb17, 2016
    Contrary to what a self-professed expert on constitutional law has repeatedly claimed here, this is not “settled law”. There is no shortage of opinions on this issue, so it’s a good idea to read the opinions of “other” constitutional law experts.
    What he claims is “simple and clear” may be that to him, but there is hardly a consensus.

  10. Nicely done, L’Observer. You’ve explained why opposition to Obama’s policies just HAVE to be race-based.
    Just a hint…….don’t complain about somebody playing the race card, then proudly play that game yourself at peak levels.
    I know some people here don’t always read the posts of others …… your case, you need to read your OWN posts before doing your 180s.
    Your blantant contradictions and doublespeak are on full display here. If you read your previous, numerous wordy posts, you might avoid these debates you’re having with yourself.
    But at least those blunders are good for a laugh…….so I don’t mind watching the “L’Observer v. L’Observing” self-debating “team”.

  11. Yep, Tom. You bet your sweet bippy that I’m playing a big old race card.

    You see, it has come to light, around say 2009, that this country has a yuuuuuge race problem. I mean, it is really, really big.

    Why, would you believe it, that just a short while ago, a Supreme Court justice suggested that African Americans would be better suited to attend easier universities than the University of Texas Austin? Imagine that.

    I won’t bore you with the other stuff about incarceration rates, imposition of death penalties, stop and frisk, driving while black traffic stops, gutting of the Voting Rights Act, numbers of unarmed African Americans shot by police officers, etc. etc. No, I’ll not bore you with them. I’m sure you are aware of them all.

    Yep, Tom. Racism is alive and very well in the United States. I mean, you wouldn’t BELIEVE the stuff they have thrown at Obama. Jeez. It wasn’t two hours ago that I read he was a homosexual prostitute. Shocking, eh?

  12. I mean really. Really! Have you ever read a more moronic statement than the president is to seek the advice of every single senator, all 100, BEFORE naming a nominee

    It just boggles the mind that anyone would deliberately expose their ignorance, their desperation, like that.

  13. Not really many objections, L’Observer. I would like to complement you on your strong objections to playing the race card. Your comments show your level of principled, sincere, consistent opposition to this odious practice…..except when YOU practise it.
    Similar to your the consistency of your “principled views” on obstructionism. The “just depends” principle.
    Ultimately, Sen. Grassley and colleagues on the SJ Committee will decide whether to consider an Obama nominee. Glad you’re on record as being OK with whatever happens after that.
    Assuming a nominee is considered by the committee, I anticipate that the nominee will get the fair, nonpartisan treatment that Leahy, Schumer, Teddy Kennedy, Reid, etc. have all demonstrated in the past.
    I haven’t seen anyone “play the race card” the way you have in 7 years of Obama’s administration. Congratulations again on condemning the race card tactic, then employing it to the max. Takes a “special” kind of skill and dedication to principle to do that.

  14. Jonathan Turley would be the ideal U.S. Supreme Court justice at this time with our dysfunctional and unjust justice system and non-rule of law government.

    1. RB – JT mentioned in an interview that he would fake his death rather than go thru the confirmation process.

  15. Glenn Greenwald or Michael German being interrogated by Congress would be a great public education for voters.

  16. From Article ll or as L’Observer calls it, article !!

    “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

    It’s really pretty simple. It’s to bad Little O’ is to dense to comprehend the wording. But the again, so is our community organizer in chief.

  17. tnash

    I had thought I had covered that when I described the process in the simplest of terms – fearing some may find ‘advice and consent’ too difficult. However, I am happy to amend my description…

    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 for the “advice and consent” process. 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 under advice and consent. 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. This is called ‘advice and consent;. No problem.

    Slow learners. The Senate can deny the confirmation

    Get on with it.

    There ya go, tnash. Any other objections?

    1. The advice comes before the nomination. And it comes from the entire Senate, not just the members of the President’s party.

  18. tnash

    Confirm. Deny. Kill it in committee.

    Get on with it.

    The President SHALL follow Article II.

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