The Sword of Damocles hangs by a horse’s hair above all of our heads, not just the rich and powerful. But, due to their lifetime appointments, only Supreme Court Justices have a significant number of people rooting for the sword to fall. Unfortunately for conservatives, yesterday the sword fell on their hero, Antonin Scalia. It could have just as easily have fallen on any of the other eight members of the Court, including the four Democratically-appointed members.
Such is fate. So it goes.
As The Big Lebowski said, “Your revolution is over. Condolences. The bums lost.”
Actually, it’s still a little premature for the left to write the epitaph of the Conservative Revolution. The conservatives are anything but resigned to their sad destiny.
While basic protocol is to observe some decent interval of time before politicizing the death of an important public figure like Antonin Scalia, the Republican Majority Leader Mitch McConnell and the chairman of the Senate Judiciary Chuck Grassley immediately declared that they would not consider any replacement nominee that the president could put forward.
There is no law that can compel the Judiciary chairman to hold a hearing on a nominee, and no law that can compel the Majority Leader to schedule a confirmation vote. The Republicans don’t need to filibuster to avoid the confirmation of Obama’s nominee.
Thanks to the 2014 decision in National Labor Relations Board v. Noel Canning, the Senate Republicans can also easily prevent Obama from making a recess appointment.
There’s also virtually no prospect of shaming the Republicans into allowing a vote, and perhaps even less chance of convincing 14 of them to override a filibuster if a vote were to be scheduled. Finally, even in the unlikely event that a filibuster fell apart, at least four Republicans would actually have to vote for confirmation.
The prospect of Barack Obama replacing Antonin Scalia on the court is completely unthinkable to conservatives. That’s why they didn’t ask for a compromise candidate. They didn’t say that they wouldn’t vote for a liberal justice. They won’t allow Obama to put his dirty hands on Scalia’s chair, and that’s the end of it.
Having spent a night to think about this, I can only envision two possible ways to overcome this visceral resistance on the right to any nominee the president might put up.
The first idea probably won’t work, but it involves putting forward someone who is advanced enough in age that they’re actuarially unlikely to serve for very long on the bench. To give two examples from the DC Circuit Court of Appeals, President Obama could pick someone like David Tatel or Merrick Garland. Both were appointed to the DC Circuit by Bill Clinton. Garland, who is 63, has been seen as a compromise choice in the past. Frankly, he’s probably not old enough to comfort the Republicans. Tatel, however, is soon to be 74 years old. He’s also been blind since 1972 because of retinitis pigmentosa. He’s an accomplished man and a sympathetic figure, and he’s only about five years younger than Scalia was when he died. While he’s known for fighting school segregation, which is kind of like being an employee of ACORN or a member of MoveOn.Org, it might be worth it to the Republicans to have Obama appoint a 74 year old instead of having President Hillary Clinton appoint the 48 year old Sri Srinivasan early next year.
To be honest with you, though, I am almost certain the Republicans would reject this kind of overture. The heat from their base is too hot.
The only promising way around this heat is to go straight to the trump card, which is the clubbiness of the Senate itself. In other words, the president could appoint a sitting senator to the Court. Here the problem, besides the partisan record of the senator, would be having appropriate credentials to sit on the highest court. Someone who sits on the Judiciary Committee, has a law degree, maybe served as a prosecutor, judge, or argued before the Supreme Court…
My two top prospects are Patrick Leahy and Amy Klobuchar.
Now, Leahy is about to turn 76, and he’s the President pro tempore emeritus of the United States Senate, having been in the upper chamber since 1975. Three separate times, he has served as the Chairman of the Judiciary Committee, and he’s voted on the confirmation of every remaining member of the Supreme Court. He’s a former prosecutor.
Sen. Klobuchar will soon be 56, so she doesn’t pass the old-age test, but she’s a former prosecutor who sits on the Judiciary Committee. She also has the pedigree: Yale undergrad, University of Chicago law degree. She’s well-liked by her colleagues, telegenic, and would make a very sympathetic candidate for the Court.
If Obama wants to maximize the pressure on the Senate in this situation, nominating either of these two would be a good idea.
Other than that, there’s always the Hail Mary of picking Joe Biden, but I don’t think that’s a good idea for a variety of reasons.
