With the White House and Congress still battling over whether or not — and if so, with whom — to fill the vacancy in the Supreme Court, the November election is increasingly likely to be shaped as much by Washington as by the primaries.
Because Hillary Clinton has said that she would “love” to nominate Barack Obama to the Supreme Court if she becomes president, some argue that Obama ought not nominate anyone lest he miss his chance to sit on the Supreme Court. If such a scenario played out, Obama would become the second former president to become a Justice, the first having been William Howard Taft in 1921.
But with all due respect to Clinton, I don’t believe her. Neither, it would seem, does Obama, who said following Justice Antonin Scalia's passing that “I plan to fulfill my constitutional responsibilities to nominate a successor in due time.” With the November election still eight months away, “there’s plenty of time,” Obama continued, “for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote.”
Nominated by Ronald Reagan in 1986, Scalia, a Catholic and the son of Italian immigrants, served as a conservative giant on the Supreme Court for three decades. Whomever Obama nominates, like Sonia Sotomayor and Elena Kagan, will as much reflect his ideological leanings as Scalia reflected Reagan’s.
Among Obama’s possible nominees are DC Court of Appeals Judge Sri Srinivasan, Ninth Circuit Judge Paul Watford, Eighth Circuit Judge Jane Kelly, DC Circuit Judge Nina Pillard — two minority men and two white women — and current Attorney General (AG) Loretta Lynch. Given that both of Obama’s previous Supreme Court nominations have been women, one an ethnic minority and the second a religious minority, I’d put my money on Obama nominating Lynch.
But then there are the Senate Republicans who, like the Republican presidential candidates, have spoken out against nominating another Justice until after the election.
One option for Obama to overcome Republican opposition would be to nominate a moderate rather than a liberal. Brian Sandoval, former moderate Republican Governor of Arizona, would have been such a nominee, but Sandoval isn’t interested. Moreover, it is in Obama’s interests to nominate a liberal. He will more likely choose a second option, to dangle a carrot out in front of the Senate Republicans to coax them into confirming Lynch.
Nominating Lynch would fill one vacancy and create another in the Cabinet, a bargaining chip Obama could use to secure a liberal Supreme Court. Reminiscent of the tit-for-tat deal that the conservative Republican Rick Santorum played with the liberal Republican (now Democrat) Arlen Specter, I believe it could be much more than likely that Obama would nominate a moderate to become Lynch’s successor.
But why would Obama want a liberal Supreme Court so much, and why would the Republicans want a moderate AG so much?
From Obama’s perspective, the very fact that he is moving forward with a nomination now is not so much a sign that he doesn’t trust Clinton to nominate him; instead, far more likely, it is a sign that he doubts that Clinton will win the White House at all — the same reason Michael Bloomberg, who would stand the best chance at sopping up Clinton’s support, is toying with a presidential run.
Fearful that Clinton and the Democrats could lose the White House in November, it makes sense that Obama would rather nominate a liberal Justice while he still can. Such a move would see that the laws passed under his administration are protected regardless of who wins in November. Remembering that whoever becomes Lynch’s successor may very well end up being replaced after Inauguration Day 2017, a few months of a token moderate AG would be a small price to pay for a liberal Justice who could potentially serve for decades.
From the Republicans’ perspective, a new AG could be just what they want. Pressure is already mounting from Congress (and figures such as former AG Michael Mukasey and former U.S. House Majority leader Tom DeLay) for Clinton to be indicted. So far, the only person keeping Clinton from being indicted has been Lynch.
With the next president expected to make up to four nominations as sitting Justices reach retirement age, the Senate Republicans may consider confirming a third liberal Justice in exchange for the White House — and in turn, up to four more Justices — worth the risk. The Senate Republicans would prefer Supreme Court Justices to be nominated by Trump than by Clinton.
No matter which way you cut it, it looks very bad for Clinton.