February 21, 2016
Should (and will) Prez Obama submit his SCOTUS nominee to the Senate this coming week?
In this post last week just hours after the news of Justice Scalia's death, I suggested Prez Obama should waste no time in naming his replacement. But, in retrospect, I can understand why it might have been disrespectful an unproductive to make a nomination even before proper respects were paid to Justice Scalia and without the Senate even being in session. But now, Justice Scalia has been rightly honored at the Court (where Prez Obama paid his respects), and the Senate goes back to work this week. Ergo the question in the title of this post.
Notably, though, the news from inside the Beltway is that Prez Obama may not name a nominee until mid or late March. This FoxNews piece, headlined "Reid believes Obama to name replacement for Scalia in 'a little over' 3 weeks," suggests that the President has indicated to his top ally in the Senate that a quick pick is not going to be coming. That suggested timing has me now wondering if Prez Obama is inclined to hold back his pick in order to seek some more significant developments in the race to replace him.
Especially given last night's primary and caucus election results, I suspect that after Super Tuesday voting on March 1, we may realistically be down to only two candidates on the GOP side and only one candidate on the other side of the aisle. Moreover, by March 15, a whole bunch of critical swing states will have voted — Colorado and Virginia vote on March 1, Michigan on March 8, and Florida, Illinois, Missouri, North Carlona and Ohio all go on March 15 — and exit polls from all those key states should indicate which candidates are doing better or worse with key voting demographics. Because it seems inevitable that Obama's nominee and the Senate's response thereto will become a big political issue in general election, I cannot help but speculate that Prez Obama may be eager to take ample time to discover and observe more about the still-emerging shape of these politics before throwing a nominee into it.
Prior related posts on new SCOTUS nominee possibilities:
- Off the cuff (bad?) SCOTUS advice for Prez Obama: nominate current AG Loretta Lynch tomorrow
- Prognosticating SCOTUS possibilities in light of existing politics
- Vetting Judge Jane Kelly: should sentencing fans be rooting for her to be Prez Obama's SCOTUS nominee?
- New SCOTUS short-list name to excite sentencing fans: Judge Ketanji Brown Jackson
February 21, 2016 at 11:55 AM | Permalink
Perhaps Doug you are giving too much weight to Obama the political animal. He is not up for reelection and frankly its not obvious that he genuinely has a preference for any of the candidates on either side of the aisle. It is equally plausible that he is taking his time to sound out the entire Senate to see which of his choices has a genuine chance to get through the Senate this year.
My own view is that he'll pick someone very liberal to motivate the base if he concludes that there is no realistic chance of getting any nominee through Congress this year, but he'll pick someone moderate if the inverse is true.
Posted by: Daniel | Feb 21, 2016 12:44:23 PM
My expectation is that President Obama will at least try to sound out Senators like Lindsey Graham, Lisa Murkowski, Mark Kirk, Rob Portman, Bob Corker, Lamar Alexander, Orrin Hatch, and Susan Collins to see if there are any potential appointees that they could possibly support. Right now, my hunch is that there are three sub-lists of nominees: 1) Moderates whom might get named if there is some sign that the Republicans are willing to confirm; 2)Very well-qualified liberals whom might get named if the Republicans seem to be holding firm on rejecting any nominee (giving the opportunity to both fire up the base and to make the Republicans look like obstructionists); and 3) liberal "dream" candidates (if the White House just wants to fire up the base).
After finding out the room temperature of the more "establishment" Republican Senators who know that what they do now may impact how a Democratic Senate treats future Republican nominees, President Obama will then decide which of the short lists to consider further. So nothing this week, but maybe a decision by March 4. Of course, if Donald Trump does well on March 1, the Republican majority may decide that a compromise is a good idea.
Posted by: tmm | Feb 21, 2016 2:35:47 PM
tmm...you and I are saying the same thing except for the fact I don't understand how a Trump victory on March 1 makes it MORE likely that the Republicans will compromise. If you think that because you think Hillary will handle Trump easily in the general let me pause while I let my laughter die down. Trump will crush Hillary. So I think a Trump victory will make the Republicans more likely to obstruct. Trump is not as conservative as he paints himself but he is no Obama.
Posted by: Daniel | Feb 21, 2016 3:09:28 PM
Quit the cast to choose from. I think we would be better off without a Prez this time around.
I base this on trust, experience, for the good of the country. None if the candidates have these qualities. So its just going to be more if the same. Oh well.
Posted by: MidWestGuy | Feb 21, 2016 9:37:35 PM
Daniel, two things in response.
First, I think most folks in Washington think that Donald Trump has no chance at winning in November. While the "beltway" perception may not be reality of what is happening in the rest of the country, the perception of folks in D.C. will color how they act over the next eight months. Trump doing well on March 1 by getting 35-40% of the Republican vote would probably make Trump the most likely candidate (particularly if Marco Rubio finishes third in most of the states and districts behind Ted Cruz). But the poll numbers that people in D.C. are looking at show that Trump would have serious problems in the general election that could lead to a Clinton presidency and a Democratic Senate.
Second, the Republicans in D.C. have no idea what Trump would do as president on things like the Supreme Court. If you saw the most recent South Carolina debate, Trump sounded like a Democrat on a lot of issues.
For both reasons, if they can get a moderate nominee from President Obama, enough Republican Senators might decide that the odds are that the alternative nominee named next February will be more liberal. They might be kicking themselves two years down the line if a President Trump starts naming conservative judges to the lower courts, but right now a compromise might look good.
Posted by: tmm | Feb 22, 2016 10:04:51 AM
For all intents of purposes, Obama is not going to put out a moderate nominee. He will wait until the most opportune time in the political cycle to nominate a progressive, making sure that the down-ticket democrat challengers to current GOP senators, can use in their campaigns, and Obama is hoping that enough of those seats flip to give the Democrats the majority in the Senate, which will guarantee at least a center-left justice (like David Souter was), and if Clinton is the president with a Democrat senate, they will get another Kagen/Sotomayor.
Posted by: Eric Knight | Feb 22, 2016 4:20:10 PM
I think the Republicans' over the top response (NO!) is bothersome since it seems gratutious. On some level, it might not matter, if the end result is the same. Still, Republicans have the votes to simply vote anyone down, so saying before anyone is nominated that no one will be satisfactory makes them look to me a bit silly.
The fact is that a realistic honest accounting is that Obama could have to put forth a fairly conservative candidate (think Kennedy -- he helps the liberals in key ways, but not in others ... some net might find him okay especially given the alternative) to have Republican senators confirm. Some liberals might think, if they are optimistic about Clinton winning, "eh. let us worry about it next year."
I think a Trump candidacy might affect the reasoning of Republicans, since he's a wild card & some probably honestly in their hearts don't think he would win. We won't see if that will happen at least to mid-March & maybe much later. As to flipping the Senate, the thing there is it will happen in November. The nominee would have to be on the table already & be as noted "center-left" at the most for Republicans to think it worth it to confirm. Republicans might even have the filibuster after losing the Senate, since Democrats might be wary of changing the rules in the middle of the game here. That might seem naive but really even before it took some doing to get the final few votes from Democrats to end the filibuster for other executive nominees.
Posted by: Joe | Feb 22, 2016 8:29:30 PM
Today is good. Why is it taking so long? The funeral is over. I vote for the 8th Circuit Judge whom Grassley likes. She was a public defender. That would be odd to have a lawyer who tried at least one jury trial make it to the Supreme Court bench. I don't know if she is from Harvard or Yale though. I know that the Harvard Yale thing is required. It is in the Constitution, right?
Posted by: HaroldRectum | Feb 23, 2016 10:30:22 AM
"who tried at least one jury trial"
Sotomayor did that too ... on the other side.
Posted by: Joe | Feb 23, 2016 11:48:07 AM