Without question, the death of Associate Justice Antonin Scalia has set all sides of the political spectrum into a frenzy. Everybody is weighing, but the stupidest comments are coming from Republicans who say that Obama shouldn’t nominate a justice at all because there is an election coming up. Rand Paul, who supposedly loves the Constitution, says that Obama has a “conflict of interest”, which is ridiculous.
The Constitution on this issue is not hard to understand: “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court.” The provision creates a power — and perhaps even a duty — in the president to make a nomination. No, it does not give him a right to have his nominee confirmed or even considered. That power lies with the Senate. But certainly the President SHALL do what the Constitution instructs him to do.
This puts the ball in the Senate’s court (so to speak) and Republican Senate Majority leader Mitch McConnell made the foolish error of showing his cards. He said that the Senate will not vote on an Obama nominee. They will delay, filibuster, whatever.
That’s fine, but who will pay the price for that? Republicans, I suspect. They need to show that they can govern, something that they have failed to do in the past few years.
So knowing the GOP gamebook, what should Obama do? Invigorate the base by nominating Loretta E. Lynch, the 83rd Attorney General of the United States. Very qualified, and approved already for the Senate for AG. And a black woman.
And the GOP can spend the whole election season explaining why this qualified black woman should not be the first black woman on the Supreme Court. I don’t know how they can win the politics of this, even if they succeed in keeping her off the bench.
Hillary and/or Bernie can add fuel to the fire by saying that if they won the election, they would nominate…. Larry Tribe. It might force Republicans to accept Obama’s nominee, as the lesser of two evils. Especially if it looks like Trump might not take the White House.
Then, there’s this:
It could all come down to 17 crucial days in January.
If Democrats win back the Senate and lose the White House in November, they would control both branches of government for about two weeks before Obama leaves office. That overlap in the transition of power is set in stone. The Constitution mandates the new Congress begins work on January 3, while President Obama stays in power until January 20.
So if Democrats take back the Senate, President Obama could send a Supreme Court nominee to that new Democratic majority, which would have 17 days to change the filibuster rules and ram in a vote before a new President takes power.
So maybe Obama might do better to select a consensus nominee. Sri Srinivasan is an often-mentioned choice. He is 48, an Indian-American, and a member of the U.S. Court of Appeals for the District of Columbia Circuit — a traditional launching pad for Supreme Court nominees. Obama first nominated him to the post in 2012, and the Senate confirmed him, 97-0, in May 2013, including votes in support from GOP presidential contenders Sens. Ted Cruz and Marco Rubio.
Now, undoubtedly there are bloggers and pundits on the right who see this playing out — politically — in their favor. And to be sure, if you are embedded on the bigoted women-and-immigrant-hating right side of the political spectrum, you’re not worried about Lynch or Srinivasan being nominated, and you hope their nomination will rally other bigots like you. Bring it on!
The problem is… America isn’t like the right. It’s not that conservative, and you only need to look at Trump to know there is a problem with right wing politics these days.