Posted Sun, February 14th, 2016
This post
substantially revises and supersedes my earlier one on how the #political_parties will likely approach the Scalia vacancy, in which I had
concluded that Ninth Circuit Judge Paul Watford was the most likely
nominee. On reflection, I think that Attorney General Loretta Lynch is
more likely. I also think that the Republicans will eventually permit the
nomination to proceed on the merits and reject it on party lines.
In thinking about how to respond to the vacancy on the #Supreme_Court, the administration has two priorities. First, fill the
Scalia seat by getting a nominee confirmed. The stakes could not be
higher: the appointment could flip the Supreme Court’s ideological
balance for decades. Second, gain as much political benefit as possible
and exact as heavy a political toll as possible on Republicans, particularly in
the presidential election. Precisely because of the seat’s importance,
this is the rare time that a material number of voters may seriously think
about the Court in deciding whether to vote at all and who to vote for.
Those priorities reinforce each other. The
Republican Senate leadership has staked out the position that no nomination by
President Obama will move forward. Because Republicans hold the Senate
majority, they have the power to refuse to hold confirmation hearings before
the Judiciary Committee and/or a floor vote on the nominee. So, any
effort to replace Scalia is dead on arrival unless the political dynamic in the
country forces Republicans to change their minds and allow the nomination to
proceed.
Not surprisingly, Republican priorities are the exact
opposite. Fundamental conservative legal victories over the past two
decades hang directly in the balance. To take just one example, Ted Cruz
is exactly right to say that a more liberal replacement for Justice Scalia is
very likely to overturn the Supreme Court’s recent recognition of a Second
Amendment right to possess firearms or at least render it a nullity as a
practical matter. There are dozens of other examples. Conversely, a
Republican appointee would not only preserve those victories but continue the
Court’s steady move to the right.
In addition, blocking President Obama’s nominee is
good politics for important subsets of Republicans. Most directly, the
Supreme Court is a signal issue for the conservative Republican base in a way
that it is not for core Democratic constituencies. Since at least Richard
Nixon, conservatives have effectively rallied against the Supreme Court as a
liberal institution that is out of control. We see that dynamic today in
Republican candidates’ remarkable attempt to frame even Chief Justice Roberts
as a failure, based on his votes to uphold the Affordable Care Act and the
administration’s implementation of the Act.
Those competing priorities put the political parties
in a deadly embrace from which neither will easily budge. The
administration feels a constitutional responsibility to press for the
confirmation of a nominee and every political advantage in doing so.
Republicans cannot accede to that effort because their base will not permit it.
In all of this, it is impossible to overstate the
importance of Ted Cruz, who will make the appointment a central issue in the
campaign and who will drive enormous pressure against proceeding with any
nomination. That pressure is likely to be too great for the Republican
Senate leadership to overcome, even if it concludes that it would be better politics
to do so.
Cruz is extremely sophisticated regarding these issues
both legally and politically. He understands the stakes perfectly and is
a thought leader among Republicans regarding the Court. He immediately
understands the value to his own personal candidacy – and he would say, to
Republican prospects in the general election – in taking the hardest possible
line against permitting President Obama to replace Scalia.
On some level, this is a reprise of Cruz’s filibuster
that shut down the government in an effort to rally conservatives in support of
defunding the Affordable Care Act. The filibuster motivated the
Republican base and dramatically raised Cruz’s own personal profile. But
the general consensus is that it hurt the Republican brand overall among
independent voters.
All that said, I do think that an Obama administration
nominee may in fact receive a vote. As Amy described in an earlier post, there is no
genuine precedent for refusing to act on a Supreme Court nomination because of
an impending presidential election. Senate Republicans’ current contrary
position invites the administration to put them in a very difficult political
position in which there is substantial pressure from important blocs of voters
to act on the nomination.
As a result, I think that the most likely scenario is
that if Republicans can come up with even a slender substantive thread on which
to base an objection to the nominee, they will seize on it and vote the nominee
down on the merits. For example, Danielle Gray, an exceptionally
qualified black woman lawyer who served in the Obama administration, would be
voted down on the ground that she was one of the architects of the Affordable
Care Act.
Avril Haines, a widely respected female lawyer who is the
current Deputy National Security Advisor, would be voted down on the ground
that she was CIA Deputy Director during a controversy over the CIA hacking into
Senate computers.
If the nominee presents a potential substantive ground
for objection that they public could take seriously as genuine – even if it
seems wrongheaded – I think that Senate Republicans will permit a vote, and
reject the nominee. The nomination would be slow-walked, including with
numerous requests for information. Eventually either a filibuster would
be withdrawn or overcome, with Senate Republicans voting essentially as a
block. Any other course than a decisive vote against the nominee invites
a certain primary challenge from conservatives in the next election.
So given the dynamic, how does each side proceed?
The administration can pick a nominee who fulfills both its
jurisprudential and political goals, without giving Republicans a tool with
which to fight back to persuade undecided voters. Dozens of nominees fit
the ideological bill of being sufficiently progressive and changing the Court’s
ideological balance if confirmed. The more interesting question for the
administration will be which one creates the greatest political benefit and
exacts the greatest political costs for Republicans in the general election.
Democrats have two political priorities:
motivating turn-out by their own voters and persuading independents to vote for
the Democratic nominee. Two Democratic constituencies in particular vote
in disproportionately low numbers: young Democrats and minorities.
The youth vote makes little difference here because
the age range for a serious nominee (roughly, forty-five to fifty-two)
does not directly touch that constituency. There are specific potential
nominees who would motivate young liberal voters – Senator Elizabeth Warren,
for example. But those nominees are the ones who would give
Republicans the opportunity to hold hearings and reject the appointment on an
up-or-down vote without serious cost.
Minority voters are a different matter.
Traditionally, black and Hispanic turn-out has trailed white turn-out. In
the 2004 election, the percentages were white 67.2%, black 60.0%, and Hispanic
47.2%. In 2008, they were white 66.1%, black 64.7%, and Hispanic
49.9%. The 2012 election was the first in which the proportion of black
turn-out exceeded that of whites. The percentages were white 64.1%, black
66.2%, and Hispanic 48.0%.
Overall, in 2012, the white proportion of the voting
population decreased to 71.1% and the minority proportion increased to 28.9%
(22.8% black and Hispanic). For that reason, many attribute President
Obama’s reelection to minority turn-out.
The best candidate politically would probably be
Hispanic. Hispanic voters both (a) are more politically independent than
black voters and therefore more in play in the election, and (b) historically
vote in low numbers. In that sense, the ideal nominee from the administration’s
perspective in these circumstances is already on the Supreme Court: Sonia
Sotomayor, the Court’s first Latina.
On the other hand, I think the President personally
will be very tempted to appoint a black Justice to the Court, rather than a
second Hispanic. His historical legacy rests materially on advancing
black participation and success in American politics. The role Thurgood
Marshall previously played in that effort is inescapable. The President
likely sees value in providing a counterpoint to the Court’s only black
Justice, the very conservative Clarence Thomas.
For those reasons, I think the President will pick a
black nominee. I’ve long said that the most likely candidate for the next
Democratic appointment was California Attorney General Kamala Harris. She
is fifty-one. A female nominee has significant advantages as well.
That is particularly true for the candidacy of the likely Democratic nominee,
Hillary Clinton.
For reasons I’ve discussed elsewhere, I think her
nomination is difficult to oppose ideologically, given her history as a
prosecutor.
If Harris wanted the job, I think it would be
hers. But I don’t think she does. Harris is the prohibitive
favorite to win Barbara Boxer’s Senate seat in the 2016 election. After
that, she is well positioned potentially to be president herself. If
nominated, she would have to abandon her Senate candidacy and likely all of her
political prospects. So I think she would decline.
But Attorney General Loretta Lynch, who is fifty-six,
is a very serious possibility. She is known and admired within the
administration. At some point in the process, she likely would have to
recuse from her current position, but the Department of Justice could proceed
to function with an acting head. Her history as a career prosecutor makes
it very difficult to paint her as excessively liberal.
Perhaps Lynch’s age would give the administration some
hesitancy. They would prefer to have a nominee who is closer to
fifty. But because the nomination would principally serve a political
purpose anyway, I don’t think that would be a serious obstacle.
The fact that Lynch was vetted so recently for
attorney general also makes it practical for the president to nominate her in
relatively short order. There is some imperative to move quickly, because
each passing week strengthens the intuitive appeal of the Republican argument
that it is too close to the election to confirm the nominee. Conversely, a
nomination that is announced quickly allows Democrats to press the bumper
sticker point that Republicans would leave the Supreme Court unable to resolve
many close cases for essentially “a year.”
I think the administration would relish the prospect
of Republicans either refusing to give Lynch a vote or seeming to treat her
unfairly in the confirmation process. Either eventuality would motivate
both black and women voters.
Other black women have been mentioned as possible
candidates. For example, California Supreme Court Justice Leondra Kruger
is well known as a former lawyer in the Obama administration, but at
thirty-nine probably too young. I also discussed Danielle Gray
above. She is widely admired, but lacks the stature of the attorney
general.
Two other potential white female nominees are likely
to get close looks. Judge Jane Kelly is a young Obama appointee to
the Eighth Circuit who was unanimously confirmed by the Senate. Homeland
Security Advisor Lisa Monaco is even younger at forty-seven.
In a previous version of this post I pointed to Paul
Watford, an Obama appointee to the Ninth Circuit, as the most likely
nominee. Watford is in his late forties. He is well respected and
reasonably well known in Democratic legal circles. I still think he is a
serious candidate, but the fact that Lynch is a woman gives her nomination a
very significant advantage. The same goes for two
well-respected appellate judges who are black, the Second Circuit’s
Ray Lohier and the D.C. Circuit’s Robert Wilkins.
The favorite candidate in Democratic legal circles is
generally Judge Sri Srinivasan of the D.C. Circuit, followed by Patricia
Millett of the same Court. Both are recent Obama appointees.
Srinivasan is a Indian American. Millett is a woman. Both would fit
the ideological profile that the administration would want. But neither
provides the same political benefit.
So while I will update my research on potential
nominees, at this point I think that Attorney General Lynch is the most likely
candidate. I think the administration is likely to nominate her, that the
Senate will initially refuse to proceed with the nomination but ultimately
accede after delaying the process significantly, and then vote her down on
party lines. At that point, Republicans will slow-walk a follow-up
nominee and claim that it is too close to the election to act on the candidate.
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