Can Obama Take Over the Supreme Court?

Think political polarization is bad now? It’s about to go into hyperspace. But here are some people Obama could appoint.

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Now what? The Supreme Court vacancy created by Antonin Scalia’s death blows everything wide open. It gives—in theory—President Obama a chance to put a third justice on the court, but much more than that, it would be a third appointment that would change the ideological balance of the court. The question many are asking, then, is: What sort of nominee could Obama put forward whom the Republican Senate might approve?

But it’s the wrong question. Or, it’s a fair question, but it’s a question with a depressing answer, because the answer is probably: no sort whatsoever.

That is to say, it’s nearly impossible to imagine this Senate—and this majority leader, the intensely political Mitch McConnell—letting Obama tilt the balance of the court in his last year, an election year. And sure enough, McConnell put out a statement Saturday evening before Scalia’s body was even cold. “The American people‎ should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president,” he said in a statement.

And that would seem to be that. Alas, according to legal scholars I consulted Saturday evening, there is no constitutional imperative requiring the Senate to act according to any timetable. So McConnell can do what he wants. He controls the calendar.

But there are two things he doesn’t control. He doesn’t control public opinion. And he doesn’t control the chess moves Obama can make on the other side of the board. It could prove to be a bad public relations error for McConnell to have made this Shermanesque statement at this early juncture. Obama will come out and say: Hey, wait a minute here. I am the president. I was elected to a four-year term, not a three-year term. We have a Constitution. It dictates a process. I plan to follow that process.

And presumably, he will. With who? We’ll get to that. But first, here’s another key procedural point to bear in mind. Any Supreme Court nominee needs 60 votes to clear cloture, not just 51. The deal the parties struck on the use of the filibuster a couple of years ago specifically excluded Supreme Court justices, so any nominee will need 60 votes. And that seems like Mission Impossible times 10.

Then the political question becomes, with 46 Democrats (including independents Bernie Sanders and Angus King), is there any remote way to get 14 Republicans to sign on to a justice who might vote to overturn Citizens United, restore the Voting Rights Act, support Roe v. Wade, support public-employee unions in the Friedrichs case, and the many other matters on which the conservative majority has in essence been 5-4 for all these years?

Fourteen is a big number. The election factors into this. There are some Republican senators from purple or blue states who might be hurt in their re-election bids by balls-to-the-wall obstruction. But there aren’t 14. There are four. Rob Portman of Ohio, Kelly Ayotte of New Hampshire, Pat Toomey of Pennsylvania, and Ron Johnson of Wisconsin.

So it’s a big climb. But bear in mind—we are presumably going to see a series of deadlocked 4-4 decisions on a number of contentious issues. Will the American public sit still for that? And bear further in mind—the court may already have decided some of these cases, because they’ve heard them, and they’ve quite possibly voted on them. What happens after they vote is that they assign an opinion to someone. But they’re decided, so it’s not impossible that Scalia could reach up from the grave and have a part in deciding, by 5-4, to dismantle public-employee unions. How would that sit with the public?

Here’s another weird scenario: a recess appointment. The Senate is going to be on Easter recess from March 21 to April 1. What if Obama put somebody in during those 10 days? There’s precedent—in 1956, another election year, Dwight Eisenhower made a recess appointment out of William Brennan. He stayed on the court until 1990.

OK, now, some names.

Deval Patrick has been high on the White House’s list of court nominees before. The former Massachusetts governor is clearly qualified. But let’s face it—the simple fact that he’s black would increase the opposition to him. I hate to write that sentence, but it’s true. That’s not because a guy like McConnell is a racist, but the GOP base, which is currently so animated by fears of white decline, would on some level hurt Patrick’s prospects.

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Sri Srinivasan is a federal judge on the DC Circuit. He’s a past solicitor general who’s argued 25 cases before the Supreme Court, and he was fairly recently confirmed to his current job, in 2013, by 97-0. It might be hard for Republicans to explain how they’re backing away from 97-0.

Speaking of the DC Circuit, it’s headed by Merrick Garland, appointed to the DC Circuit by Bill Clinton. He became the chief judge in 2013. He’s considered a judicial moderate, and back in 2010, Republican Sen. Orrin Hatch, always a big player in Supreme Court deliberations, said that Garland would be confirmed for the high court on a bipartisan basis, “No question.”

Now let’s have some fun. Is there a respected Washington-insider type, a Washington lawyer, who is respected on both sides of the aisle in the way John Roberts was? A Ron Klain type. Klain is a lawyer, and while he does have a political background, his most recent foray into public service involved helping to save hundreds of thousands of lives in West Africa, as the Ebola czar. There are surely others in this category, but my point is that it’s not a bad category for Obama to think about: A person senators know personally, who has the Washington stamp of approval.

And speaking of people senators know personally: What about a senator? Here’s a thought for you. Chuck Schumer. I ran this by two Democratic Senate aides, and they said ha ha—but they didn’t say no. Schumer has been in the Senate almost 20 years. Most Republicans respect him. He actually tries to work across the aisle. They all know how smart he is. And he’s a lawyer. Harvard Law. Not even Ted Cruz could say with a straight face that he isn’t qualified. The NRA would go apeshit. And he’s in line to be the next Democratic leader. But that would really box the Republicans in.

And a final question: How does this reverberate in the presidential election? That’s a whole other column. But it brings the court to the fore, which is to say that it brings the question of electability to the fore. It makes voters aware of the judicial stakes in November in a very concrete way, and that is something that has only been abstract so far.

That would seem to help Hillary Clinton on Democratic side and Marco Rubio on the Republican side. It would seem to hurt Donald Trump, because given his history, Republicans can’t be sure that he’d even name anti-Roe judges. But it depends on how they play it. This will take skill and nuance on the candidates’ parts, the kind of skill and nuance that we all fairly use as a criterion of their fitness for office.

Hold onto your hats. You think polarization has been bad? It has. But it’s about to zoom into hyperspace.