The first moves in the Supreme Court chess game are now clear: President Obama will nominate someone, and Republican leaders will either refuse to bring the nomination to a vote (McConnell) or filibuster (Cruz). Meanwhile, several crucial cases—on Texas’s abortion law, on Obama’s immigration actions, on public-sector unions—will likely end up in a 4-4 tie at the Supreme Court.
Potentially, Obama could continue to nominate—not just one individual but a raft of qualified jurists who will essentially be sacrificial pawns. Nominees would likely include candidates from constituencies the Democrats would like to win over: women (Patricia Ann Millett, Jane Kelly), people of color (Adalberto Jordan, Paul Watford, Sri Srinivasan), or both (Loretta Lynch, Kamala Harris).
While this would be a disgraceful exercise for these brilliant jurists, it might shift public opinion. Voters don’t like it when Congress members don’t do their jobs, and rhetoric notwithstanding, there’s clearly no precedent for what the Senate is doing now. Then again, voters don’t typically care about the Supreme Court, at least according to what they tell pollsters and they could just blame “Washington” for the dysfunction, even though the only dysfunctional people are Republicans.
Ironically, Obama played into it this confusion when he complained that “venom and rancor in Washington has reverted us from getting work done.” That general language blames everyone equally, and contributes to the “throw the rascals out” mood in the country that has propelled Donald Trump and Bernie Sanders. It also fulfills the ambitions of the Kochs, Scaifes, Olins, and other far-right funders who have spent billions to convince Americans that “the system” is broken, when in fact the system had been working decently well before their Tea Party extremism came to destroy it.
There are some signs that GOP opposition could crack though.
Already, Senate Judiciary Committee chair Charles Grassley and Alaska Sen. Lisa Murkowski have broken with McConnell—in Grassley’s case, after the Des Moines Register urged him not to pass up “a chance for him to be principled rather than partisan.” Perhaps moderate Republicans and Democrats come together, a bit like the “Gang of Eight” did on immigration (before one of them ran for president, anyway), and develop some kind of consensus that leads to a consensus candidate.
Who might such a candidate be?
One possibility is Eighth Circuit Court Judge Jane Kelly, whom Grassley supported in the past, and who was confirmed 96-0 in 2013. This would fit Joe Biden’s recent comment about judges recently confirmed unanimously, and could at least garner a committee hearing. Judges Paul Watford, Jacqueline Nguyen, Srikath Srinivasan, and Adalberto T. Jordan are similarly situated—all recently confirmed, all with moderate elements in their background. (Attorney General Loretta Lynch would likely be a more contentious nominee.)
Another consensus candidate would be a moderate Republican, someone who is on record as supporting reproductive rights and LGBT equality (two must-haves, surely, for any Obama nominee) but whose nomination would make Senate Republicans look ridiculous. One name floated already is Nevada Gov. Brian Sandoval, who is a former judge and attorney general, Hispanic, and from a swing state.
While a consensus appointment would be a win for Obama, it would also surely be a win for Republicans to have staved off a Justice Elizabeth Warren and forced the appointment of a Justice Kennedy-like moderate. Everybody wins some, everybody loses some—sounds like the definition of compromise.
At the other extreme, Democrats could go “nuclear” and filibuster everything until a nomination is considered, but this would turn them into the obstructionists, so it’s a political loser.
A better idea: Sue the Bastards.
The language of the Constitution is clear: the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the supreme Court.” On its face, that is language of obligation (“shall”), and the unusual construction of “by and with” indicates that the Senate’s role is also mandatory.
House Republicans were given standing to sue the Obama administration over the implementation of Obamacare—also on constitutional grounds, since the claim was exceeding executive authority—so it seems reasonable, or at least plausible, that the Obama administration could sue Senate Republicans for failing to fulfill their constitutional duties, especially because that failure is preventing the president from fulfilling his.
Now, in practice, all the Senate would have to do in response is formally take up the nomination and, in the words of Donald Trump, “delay, delay, delay.” They could move like snails, slowly… deliberating… until… 2017.
But they would have to do something. More importantly, they would be found by (presumably) the Supreme Court to be violating their oaths of office. In an election year that is pretty strong ammunition. Even if it’s never used, just the threat of it might make a consensus candidate more possible. That would be good for the Court and good for America.