Supreme Court

After Scalia, Obama Faces Tough Choices on Nomination

Will Obama go for a fight that will mobilize the Democratic base, or choose a candidate who has some distantly plausible chance of confirmation?



Will it be a fight or a trap? That's the choice facing President Obama as he looks for a candidate for what is likely to be his final nomination to the Supreme Court.

Republicans who control the Senate have already signaled their preference and intention to wait until after the presidential election to confirm a nominee. President Obama has said he will go ahead with a nomination anyway.

The decision facing Obama, then, is whether to go for a fight that would mobilize the Democratic base, or instead choose a candidate who has some distantly plausible chance of getting confirmed, or at least of making Republicans seem unreasonable to independents or swing voters for failing to confirm him.

In the base-rallying category, two candidates that you may not have read much about, but who would definitely do the trick, are Pamela Karlan and Goodwin Liu. The name of Karlan, who clerked for Justice Harry Blackmun, surfaced in connection with earlier Supreme Court openings during the Obama administration. A Stanford law professor who is now deputy assistant attorney general for voting rights, she'd be the first openly LGBT member of the court.

Liu clerked for Justice Ruth Bader Ginsburg. He taught at U.C. Berkeley. President Obama nominated him to a seat on the U.S. Court of Appeals for the Ninth Circuit, but Liu's confirmation was blocked by Republicans. Since then, he has been a justice on the Supreme Court of California.

Both Liu and Karlan are graduates of Yale Law School.

Three other candidates in the "fight" category are worth mentioning. Deval Patrick is a former governor of Massachusetts and Clinton administration Justice Department official. He and President Obama are both Harvard Law School graduates with Chicago ties and with an annual summer dinner date on Martha's Vineyard. Preet Bharara is the U.S. attorney for the Southern District of New York and a former aide to Senator Schumer who has attracted adulation in the press for his crusades against corruption in Albany and insider trading on Wall Street. Loretta Lynch, another former federal prosecutor from New York, is now attorney general of the United States. Liu and Bharara are Asian-American; Patrick and Lynch are black.

In the "trap" category, plenty of commentators have suggestions. George Mason University Law professor David Bernstein, author of Lawless: The Obama Administration's Unprecedented Assault on the Constitution and the Rule of Law, suggests nominating former Sen. Joseph Lieberman. Lieberman might win enough support from Republicans and former Senate colleagues to get confirmed, but why would President Obama give a choice spot on the high court to a 74-year-old who campaigned for John McCain in 2008?

Jeffrey Sutton, who sits on the U.S. Court of Appeals for the Sixth Circuit, is another choice who fits squarely into the "trap" category. He is from the presidential election swing state of Ohio, where Sen. Rob Portman, a Republican, faces a re-election battle that will help determine whether Republicans retain control of the Senate majority. Sutton, who clerked for Justice Scalia, was nominated to the bench by George W. Bush but won plaudits from liberals when he ruled in favor of the constitutionality of ObamaCare.

Another name that come up in the "trap" category is Theodore Olson, a former solicitor general of the United States who won liberal admiration for his legal work in favor of gay marriage. Olson, 75, has been in the news recently representing Apple in its fight with the FBI over government access to the San Bernardino shooter's smartphone. Also 75 is Jose Cabranes, who sits on the U.S. Court of Appeals for the Second Circuit. A Clinton appointee, Judge Cabranes is a widely respected judge who would be acceptable to many Republicans.

David Barron, a former Harvard law professor and Justice department official who now sits on the U.S. Court of Appeals for the First Circuit, irritated the ACLU and The New York Times editorial board with his legal memos in support of executive power in the war on terror. He clerked for Justice John Paul Stevens. If Republicans opposed his confirmation, President Obama could paint them as extremist and obstructionist.

Vice President Biden, 73, is also occasionally mentioned as a "trap" choice. A former senator, he is well liked by his former colleagues. Like Scalia, he is a Catholic. His support as a senator for federal legislation banning so-called "partial birth" late-term abortions might also bolster his potential for crossover appeal.

Or Obama could nominate his FBI director, James Comey, a former federal prosecutor, a Republican admired by liberals for resisting some NSA data collection in the Bush administration and by conservatives for his dogged probe of Hillary Clinton's private email server. He is also a supporter of gay marriage.

Weighing against President Obama's inclination to appoint any of the so-called "trap" choices is the view that Democrats have a good chances of winning the presidential election in 2016, so they might as well wait until after the election and get a young candidate they really want rather than some tepid moderate or merely acceptable older candidate who happens to be confirmable in this quirky situation. Republicans have the same view of it—they might win the presidential election, so they also think they'd be better off waiting until next year and then nominating and confirming a red-blooded conservative who will be on the court for years.

The likeliest outcome? President Obama will make a "recess appointment," moving when Congress is out of session to fill the spot on a temporary basis. Republicans would cry that it is unconstitutional, but they'd have a difficult time getting a court to find that they have the standing to sue to challenge the appointment. Would a Supreme Court justice sitting as a recess appointee be asked to rule on the constitutionality of his or her own presence of the court? Would a justice in such a situation recuse himself or herself? These are constitutional questions of the sort that will leave a lot of people wishing the late, great, Antonin Scalia were still with us to offer guidance.

NEXT: John Kasich Said Women Had to Leave Their Kitchens. Offensive? Not in Context.

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  1. I'm not sure if there's any precedent that says that President shouldn't nominate a judge merely because he's in the sunset days of his administration.

    The Senate can refuse to confirm, but saying that Obama can't name a replacement seems like dubious reasoning.

    1. There IS no precedent. President Obama is obligated to nominate Supreme Court justices. But now the GOP is saying, "It doesn't matter who the President nominates, we're not going to deal with it. No matter how liberal or moderate or conservative they are, we aren't going to vote until after the election is over. Nope. Nada. Ain't gonna do it. And if the next President is a Democrat, we won't vote on any new Supreme Court nominees until 2021 at the earliest." I wonder how Scalia would feel about that!

      1. No precedent? Maybe not for an end of term appointment, but Borking is a term for a reason.

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      2. There's precedent for "shouldn't". Not for "can't" (technically).

      3. The Constitution grants the power to nominate to the President with the advice and consent of the Senate. The Senate can refuse to consent to anyone. There is nothing stopping them from doing that. Of course, that would then become an election issue.

        1. No one would actually name a proposed nominee, though.

          1. (Stealing this from someone here, days prior; I think it was RC)

            What's wrong with submitting a list of nominees to the White House, telling him, "We'll confirm whoever you pick from this list?" And then make Janice Rogers Brown one of the names.

            1. You mean black woman Janice Rogers Brown? No, her's should be the ONLY name. If the turd refuses, it should be blamed on racism and sexism.

            2. That was me. I stole it from someone, can't recall who, though.

              [calls in self for theft of intellectual property]

        2. Holy shit! What if trump wins and nominates Ted Cruz?!?! How horrible would the next 30 years be?

          1. The funny thing is: the Senate would probably love getting him out of their hair. OTOH, not like they'd reward a guy who's given speeches calling all of them a bunch of venal, corrupt fucksticks.

            1. But they *are* a bunch of venal, corrupt fucksticks.

          2. I thought Trump should have said that during the last debate when this topic came up:

            "One of my first acts as President will be to nominate Ted Cruz to the Supreme Court. Who here would like to see Justice Cruz? Waddayasay, Ted - if nominated, will you serve?"

      4. "President Obama is obligated to nominate Supreme Court justices"

        Shall is a strong word, but I'm not aware of any sort of ruling on the question. Would failure to nominate be considered an impeachable offense?

    2. Maybe it's short for "can't in good conscience."

    3. There is plenty of precedent that Barry can look at all possible options and invent a new option that is worse than all others.

  2. A Stanford law professor who is now deputy assistant attorney general for voting rights, she'd be the first openly LGBT member of the court.

    Hey I know, how 'bout we consider someone with a first rate legal mind.

    1. That is crazy talk!

    2. Hey, what kind of extremist monster are you, anyway?

    3. "Just what we've always needed: an LGBQWERTY Supreme Court justice", said nobody sane ever.

    4. I'm sorry but I'm having a problem with the LGBT label.

      If you tell me someone is 'openly LGBT', I really don't know what the fuck you're talking about. That is at least 4 different things.
      I seriously doubt many gay men are happy that society has lumped them in with Transexuals.

  3. The White House politicizing its responsiblity? Now I've heard everything.

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  5. If I were h, I'd nominate and ride the Congress until it caved. This congress can't hold out for 2 weeks, let alone months.

    I hope I am wrong.

  6. The likeliest outcome? President Obama will make a "recess appointment," moving when Congress is out of session to fill the spot on a temporary basis.

    He already tried making "recess appointments" when the Senate wasn't actually in recess, and got unanimously laughed right out of the Supreme Court.

    Would he have the audacity and gall to try doing it again anyway? Yeah, if anyone would try, it's him.

    1. Well, there's one less no vote on the court.

    2. It would be an interesting point, whether SCOTUS could refuse to seat an illegitimately appointed judge. I think they could, but only if it was perfectly clear that the Senate wasn't really in recess. Keep in mind, the recess appointment is only valid until "the End of [the Senate's] next Session." A session is not a term, but merely a period when the Senate is not in recess, so any recess appointment could be negated by simply opening a session, and then going back into recess. The next day, open another session, and viola - recess appointment gone.

      Count on the Repubs to fuck this up, though, by not keeping the Senate technically open for business every day until January 21, 2017.

      If he did try this with SCOTUS, the Repub base (and more, I suspect) would be incandescent with rage, and turnout would be sky-high for any Repub candidate.

      1. They will fuck it up. They are the party of fucking shit up.

  7. Here's a far fetched 'trap' nominee. Roger Gregory from the 4th Circuit. Was Clinton recess appointment, but one that Bush almost immediately nominated to the 4th Cir. The first African-American on the 4th Circuit in fact. He sailed through the Senate 93-1 and is generally liberal, but something of a centrist. Comes from an electoral battleground state in Virginia and did not go to Harvard/Yale for law school (Michigan) which should be considered a plus. If he weren't already 62, I think he'd look really good for this.

    1. If he weren't already 62

      True, he's still a little young for the Supreme Court.

  8. Preet Bharara is the U.S. attorney for the Southern District of New York and a former aide to Senator Schumer


    1. Fuck THAT guy.

      1. Use a condom.

        1. No no, fuck him with a woodchipper.

  9. Why don't scouts Nima campaign and openly court presidential nomination? That would be an interesting world. In a world that allows Trump to get this far, why not?

    1. In unrelated news, I'm forming a committee to investigate pandering for a supreme court nomination.

      1. You should form a committee to investigate giving us an edit button.

        1. This is a prime example of something I could fix from my seat on the bench.

    2. Obviously meant to read scotus noms.

  10. Jose Cabranes rubberstamped the New York SAFE Act gun ban. No thanks.

    1. But is he a wise latino grandfather?

  11. What's so wrong with Borking whatever nom he throws up there until six months prior to the election, when the 'Thurmond Rule' would apply?

    "Oh yes, let's confirm a lame duck's appointments, 8.5 months before what's likely to be one of the more bitterly contested elections in recent U.S. history. Especially when it looks likely that the party holding the Senate's likely to win the election. Brilliant!"

    1. The problem with that is that some of the Republican Senators you're thinking of Borking him are in swing states and up for election, and kind of want to keep their seats. The majority party is composed of individuals, not a Borg-like bloc.

      About 5 or 6 of them defecting for a somewhat palatable compromise choice, and Obama gets an appointee.

      1. The problem with that is that some of the Republican Senators you're thinking of Borking him are in swing states and up for election, and kind of want to keep their seats.

        Fuck those guys.

        About 5 or 6 of them defecting for a somewhat palatable compromise choice, and Obama gets an appointee.

        Not if the nominee never gets a hearing.

  12. The worst possible outcome, IMO, would be a Democratic winning the Presidency (bad enough on its own) and then nominating Obama who would likely accept the nomination and be a HORRIBLE justice.

    1. I think you overestimate his work ethic.

    2. I think you're overestimating the chances of the Republicans consenting to Obama. That only happens if the Ds take the Senate.

      1. No way Obama puts himself under oath to be grilled by Ted Cruz. No way.

        1. No way Obama takes a job that obligates him to show up on time.

  13. Nominating Comey could be a twofer for Obama. If he doesn't get through, then Obama could tar the Republicans as bitter obstructionists who would not even confirm a centrist Republican to the Court. And if he does get confirmed, then Obama can nominate a company (wo)man to replace Comey as FBI director - someone who would be less likely to raise hell when the DOJ declines to indict Hillary. (As is, the notoriously independent-minded Comey may not be willing to go quietly into that goodnight if the FBI is convinced they have enough to indict and the DOJ stonewalls it.)

  14. Pamela Karlan, graduated from Yale

    Goodwin Liu, received J.D. from Yale

  15. If you are Obama, what exactly do you have to lose at this point by nominating the most radical leftist you could possibly hope for?

    1. The possibility of getting somewhat slightly less radical appointed to a lifetime appointment?

  16. Also, go ahead and scratch all the 70+ candidates. That's not going to happen.

  17. So, while I believe it was tactless for McConnell to make his statement within hours of Scalia's death, I think it served a legitimate purpose in forcing the president towards a palatable candidate. Clearly the gauntlet was thrown in challenge of Obama nominating anyone that would "mobilize the Democratic base." However, if he came back with a candidate previously well accepted by Senate Republicans, they could walk back from the cliff in a way that would save face for both sides. I may be cray-cray, but that's my take.

    One such candidate that might fit the bill for the latter would be Diane Humetawa.

    1. I love all these "it'll mobilize the democrats warnings".

      Republicans literally believe (because they're right) that rights they hold dear are going to be stripped away and that in future political campaigns they will be muzzled. They believe their very political liberty is at stake. If that's not the biggest motivator their could be I don't know what would be.

  18. Does the Cochran law firm have any black LGBT crippled midget lawyers? More than anything, I want a SCOTUS nominee who's worked on the defense side of the courtroom. To hell with all the former law profs who have no real trenchwork experience with how the law really works and to a special place in hell with all the gov't/prosecutor side lawyers who know damn well exactly how the law really works.

    1. Right. Someone who's argued before SCOTUS would be great. A current appellate judge who's been both on the defense and argued before the court might be less of an ideologue--either conservative or progressive.

    2. Not saying there aren't any former defense counsel---either crim or civil---on the bench, but it sure isn't many. A brief Googling didn't find any for me. Can any of you think of a major appellate judge---either fed circuit or state supreme court/court of appeals---that was formerly defense counsel? I can't. Maybe one that started in the DA's office/USA's office, then went defense, then got on the bench?

      They just don't seem to get appointed. Which is really unfortunate.

  19. *If* Republicans actually cared about having good judges on the courts, then they'd demand that *any* nominee - whether from President Obama or from a Republican President - be

    (a) committed to the constitution as it exists, not as some theorists want it to be

    (b) committed to the *entire* Bill of Rights, including the First, Second, and 10th Amendments

    (c) the sort of judge Republicans promised in their platform to support - that is, someone who will defend unborn life and true marriage against activist attacks

    (d) someone who, faced with a bad precedent, focuses on the badness and not on the fact that it's a precedent

    (e) Someone who gets up every morning thinking "how can I piss off the NYT editorial board today?" [h/t to Ann Coulter for this one]

  20. And if Democrats can take one of the founders of Obamacare (Romney) and make him a right-wing extremist, how hard could it be for the Republicans to rip the "moderate" mask off of these so-called compromise candidates and paint them in their true extremist colors?

    Find their pre-Heller remarks about the Second Amendment.

    Find their denunciations of Citizens United.

    Bring Norma McCorvey, Jill Stanek, Lila Rose and the indicted body-parts expose people to testify to how extremist abortion really is.

    Find the candidate's supportive statements about affirmative action and bring in Dr. Bakke (remember how the media tried to shame him by contrasting him with an affirmative action beneficiary who ended up messing up a patient), bring in Ward Connerly, bring in Asian parents whose kids got turned down for their choice of college.

    Don't let them put on a moderate disguise again!

  21. Obama has appointed a pure political justice and a pure identity politics justice. Neither was in her 70's. In fact, neither will be in her 70's when the next president finishes his/her term. Nor the next term.

    No way he appoints one of your aging "trap" justices. He clearly intended to alter the court along partisan lines for as long as he could.

    Kagan gave answers during her confirmation that were clearly exclusionary for a potential justice - opining, for instance that the feds have the power to order you to buy broccoli. The senate failed to stand up for principle in that case. It is doubtful that they will stand up for principle in the future.

    Appointing a black lesbian would be a pretty significant trap for rallying the base, and a nice dovetail to the war on women for a Hillary candidacy. Perhaps toss in Hispanic and immigrant as well... Whatever the case, he's likely to appoint someone in their 40's in order to cement the partisan tilt of the court for as long as possible. That is his legacy play.

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