The power to appoint Supreme Court Justices is mentioned during every presidential race, but the death of Justice Scalia creates the first election year Court vacancy in decades. Majority Leader Mitch McConnell’s announcement that the Senate will not confirm an appointee means the issue will be alive through November. President Obama’s promise to perform his constitutional duty by forwarding a nominee assures that process will be as controversial as the person.
President Obama’s most aggressive move is to make a recess appointment immediately. The Supreme Court recently limited his appointment power during small legislative breaks, but Congress is currently on the kind of official recess during which the Court appeared to uphold appointments. A recess appointment is the only way to get a new Justice who can vote (presumably President Obama’s way) on cases this term, which involve abortion, affirmative action, immigration, voter rights and unions. A recess appointee only lasts until the 2017 Congress begins, but 11 months may be better than the nothing that McConnell is offering.
The downside is a constitutional clash with the Senate and accusations of a “power grab” that could hurt the Democratic nominee by turning off moderates and making the issue more urgent for conservatives.
Should President Obama follow the normal appointment process, he needs to decide who he wants. A progressive star like Sen. Elizabeth Warren would almost certainly be denied a hearing. That might increase Democratic turnout in November, but moderate voters could be pushed away by charges that the president didn’t really try to work with Senate Republicans.
Certain characteristics make a nominee easier to confirm, or at least harder to dismiss. Senators have often built ties across the aisle that can ease their nomination, and Sens. Amy Klobuchar (Minnesota) and Cory Booker (New Jersey) have been mentioned. Someone who was a conservative, or has worked for or been appointed by one, such as Judge Paul Watford, may also have a smoother path. Senators have difficulty explaining a flip-flop on someone they have supported in the past, so recently confirmed appointees such as Judge Patricia Millet have a leg up. Historical significance, like California Supreme Court Judge Goodwin Liu as the first Asian American nominee, makes a “no” vote harder.
Two current buzz candidates mix those features. Attorney General Loretta Lynch was confirmed by this Congress, and would be the first African American woman nominated. DC Circuit Court Justice Sri Srinivasan was confirmed unanimously in 2013, clerked for Justice Sandra Day O’Connor and is Asian American. Either would greatly raise the stakes of McConnell’s obstruction strategy, particularly among moderate voters.
Pundits muse about an “October surprise,” a late breaking event with the potential to shake up the November election. Scalia’s surprise death may have come in February, but its impact will likely dwarf anything that happens in the fall.
