How the GOP Senate Constrains Obama’s SCOTUS Choices

How the GOP Senate Constrains Obama’s SCOTUS Choices November 7, 2014

With the Republicans taking control of the Senate, one thing that is certain is that if a Supreme Court justice were to retire in the next two years, voluntarily or involuntarily, President Obama’s short list to replace them will be considerably different than it would be if the Democrats had retained control. Noah Feldman identifies some possible candidates:

That means Obama would have been in a much stronger position to nominate a liberal if he had a Democratic Senate than he would be facing down Republicans.

All this means that a Democratic nominee for the Supreme Court in the next two years would probably need to have a strikingly different ideological profile than any of the last four nominees. To be confirmed by a Republican Senate, the nominee would have to be at least a credible centrist — more in the model of Sandra Day O’Connor or Kennedy then Ginsburg or Breyer.

What potential candidates fit that description? The big midterm election winners in the pool of potential justices are people like Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia circuit, or Sri Srinivasan, a relatively recent appointment to the D.C. Circuit. Garland, a former federal prosecutor, worked for the Department of Justice during Bill Clinton’s administration — but in the criminal division and then as principal associate deputy attorney general (yes, that’s a real title) where he supervised big ticket criminal investigations such as the Unabomber search…

Garland is known as a moderate, and he could plausibly replace any of the three old white men should one of them have to step down. As a judge he has managed not to incur the wrath of conservatives, and he is probably confirmable.

Srinivasan has much less experience, having been appointed to the federal bench in 2013. But Srinivasan has even less partisan baggage than Garland. He never held a political appointment until 2011, when he became principal deputy solicitor general. Before that he had been a lawyer in private practice and a well-respected assistant in the solicitor general’s office during the George W. Bush years. The Senate confirmed him for the D.C. Circuit by a vote of 97-0 — something very close to a certificate of confirmability.

But if it is Justice Ginsburg that retires, the president would be under some pressure to nominate a woman to replace her. He’s already appointed two women to the court, which might give him some wiggle room there politically, but Feldman doesn’t mention any female judges who might be viewed as moderate and therefore confirmable.

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  • eric

    I think it’s a pretty bold assumption that a GOP Senate would let *any* candidate through, no matter how moderate. They don’t seem to want to pass any legislation at all, for fear that Obama and the democrats will be seen as running a functioning government. The same is true for judicial nominations below SCOTUS over the past several years. So I don’t see any reason to think they wouldn’t just obstruct any WH nomination at all.

  • They’d shoot down a Pinochet nomination.

  • themadtapper

    I’m gonna have to agree with eric. GOP Senate won’t confirm ANY appointment that isn’t far right. They’ll block any nomination, even moderate ones, and scream at the top of their lungs that Obama is the obstructionist because he wants to nominate radicals. Fox will parrot that line and CNN/MSNBC will try to paint it as a both-side-are-wrong scenario and the GOP will keep their base fired up while managing to keep the independent/moderate voters disappointed with “do-nothing” Obama. Really the only hope is to survive until 2016 and have the Dems take back the Senate and win the Presidency. Then we might have a chance to get liberal (or the closest thing to it you can find in America) appointees.

  • colnago80

    Even if the Democrats had held onto the Senate, it wouldn’t make any difference for SCOTUS nominations. The nuclear option invoked by Reid specifically excludes SCOTUS nominations so the Rethuglicans would have just filibustered any nomination sent up.

  • Reginald Selkirk

    They don’t seem to want to pass any legislation at all, for fear that Obama and the democrats will be seen as running a functioning government.

    Post-mid-term advice to Republican Congress: Don’t govern

  • mck9

    Why does anyone think Obama would appoint anyone left of center even if he could? There’s too much danger that a liberal Justice would try to revive the Fourth Amendment.

  • One more time, Ginsburg is not retiring. This is the right thing.

    Imagine, if you will, that Ginsburg had retired right after the 2012 elections. Who do you think would be a liberal justice, as liberal as Ginsburg that Obama would have been able to get confirmed in that toxic environment.

    Fast forward to present. Same question.

    It’s NUTS asking or contemplating her retirement. The best chance Obama has to nominate a justice would be if Scalia dies painfully of a stroke.

  • robertfaber

    Ginsberg needs simply to wait for two years. In 2016 there are only 10 Democratic senators up for re-election, and aside from Colorado, they are in deep deep blue states (Hawaii, Vermont, New York, Connecticut, Maryland, and the west coast). 23 republican senators from the tea party wave of 2010 will be up, in states as blue as Illinois and Pennsylvania. The dems will go at least +5, retaking the senate, possibly as high as +10. I don’t see a chance of the GOP winning the presidency any time in the foreseeable future, unless they stack the electoral vote by splitting up the midwest by district and keeping the south at winner takes all per state. That’s some serious deck stacking but that’s what it’s coming to in order for them to win in presidential years.

  • screechymonkey

    I’m baffled by any measure of ideology that lists Kennedy as a moderate but not Breyer.

  • lorn

    I don’t see it that way.

    IMHO Obama should find the most openly liberal and progressive potential justice available, preferably a black female, and make the Republican senate reject her in lengthy hearings and with nationwide media. Let talk radio take their bloody jabs. But keep resubmitting her as long as it is legal and practicable to do so. If necessary to submit a second nominee shift to an even more liberal black female and let them throw a fit. Keep pushing ever more openly liberal nominees. This uses up news cycles. it keeps the administration on attack and denies the congress initiative. As long as the congressmen are bloviating over a SCOTUS nominee they are not pushing their own agenda.

    The other aspect is that it forces the GOP to react and gives them an opportunity to launch a tirade. Forcing them to keep doing this is going to try their patience and invite fulmination that will cement the identity of the GOP as aggressors and obstructionists. With luck the outrage will take on racist and sexist overtones and further marginalize the GOP in those demographics.

    Playing nice has not, and will not, work for Obama. This is not the time to equivocate.

  • sugarfrosted

    I’m pretty sure they hate Obama so much that he couldn’t even get Robert Bork confirmed.