Who fills Justice Antonin Scalia’s seat on the Supreme Court will have a profound effect on the law — and all of us — but at this stage the question of filling the vacancy is entirely about the politics of presidential appointment and Senate confirmation.
Despite the rhetoric of Senate Majority Leader Mitch McConnell and Republicans on the Senate Judiciary Committee that they will not hold any hearings on a Court nominee before the election, it is impossible to know what will happen, especially until President Obama announces his choice. This is his chance to dramatically change the composition of the court to better protect our rights and advance equality for decades to come. He must not squander this opportunity.
Without Scalia, the court is closely divided, likely 4-4, on many of the most important social and legal issues: abortion rights, affirmative action, campaign finance reforms, the constitutionality of the death penalty, gun control laws, and Obama’s immigration policy.
Several of these issues are before the court in the current term and there is a likelihood of many 4-4 splits. Last year, the Court decided 66 cases after oral argument and 19 were resolved by a 5-4 margin. If the eight justices are evenly divided, they have two choices: They can affirm the lower court, without opinion, by an evenly divided court, or they can put the case over for reargument next year. But then the question is whether there will be a ninth justice for the next term, which begins in October. On Tuesday, the Republican members of the Senate Judiciary Committee announced that they will not hold hearings or otherwise consider any nominee by Obama.
The Constitution states that the President “shall” appoint Supreme Court justices with “the advice and consent of the Senate.” There is no exception for vacancies that occur during election years to the duty of the President to appoint, or the Senate’s duty to advise and consent. In fact, 24 times the president has nominated someone for the Supreme Court during the last year of a presidential term, and in 21 of these instances the Senate has confirmed.
But the reality is that there is no way to force the Senate Judiciary Committee to hold hearings or compel the Senate to vote on a nominee. In light of this, what should Obama do?
Most of all, he should not pick someone who Democrats would regret for decades, should he or she be confirmed. The temptation for the President might be to pick someone moderate or even a bit right of center, perhaps a Republican, in the hope of maximizing the chances of confirmation.
A recent rumor was that Obama was considering Republican Gov. Brian Sandoval of Nevada, though he now has removed himself from consideration.
It is uncertain whether such a pick has any greater chance of being confirmed by the Senate. More important, throughout history, presidents have nominated individuals who share their basic values. President Ronald Reagan chose Antonin Scalia precisely because of his conservative views, just as President George W. Bush selected John Roberts and Samuel Alito for exactly that reason. Above all else, President Obama should pick someone who is likely to share his views on the major constitutional issues and likely be a consistent vote with Justices Ginsburg, Breyer, Sotomayor and Kagan in the most important cases.
What should President Obama look for? He should pick a person with impeccable credentials, a compelling life story, and no paper trail with regard to ideology. He should select someone that the Republicans cannot campaign against and where Republican opposition would come at a significant political cost.
There are many such individuals. To give one example, California Supreme Court Justice Mariano-Florentino Cuellar graduated magna cum laude from Harvard, received a law degree from Yale, and a Ph.D. in political science from Stanford. He was born in Mexico, grew up in Brownsville, Texas and moved at age 14 to Calexico, California. He became a Stanford law professor in 2001. He is brilliant and personable.
If Obama nominates someone like that for the Supreme Court, there will be substantial pressure on Republicans to hold hearings. The key could well be Republican senators who are up for re-election — such as Ron Johnson of Wisconsin, Paul Kirk of Illinois and Rob Portman of Ohio — who could be hurt by perceived obstructionism against an impeccably qualified individual. If four Republican senators join the Democrats, there will be a majority in favor of confirmation. Of course, conservative Republicans could try to filibuster and prevent a vote by the Senate.
Even if Republicans on the Judiciary Committee refuse to hold hearings, there still is the possibility of an Obama nominee getting confirmed. If the Democrats keep the White House in November, even a Republican-controlled Senate may feel that there is no point in blocking the nominee any longer. And if the Democrats take the Senate back in November, they can confirm Obama’s nominee after they assume control on January 3 regardless of who wins the White House.