A supreme choice for president

Getty Images

The 2016 Iowa caucuses and New Hampshire primaries are in the rearview mirror. Hillary ClintonHillary Rodham ClintonCarson: US present course set for 'carnage and death' Dems see political gold in fight over Trump's taxes Trump tears into Kristol on Twitter MORE, the presumptive Democratic nominee, eked out a victory in the Hawkeye State. However, she was badly beaten in New Hampshire, a state she won in 2008 and her rival for the nomination, Vermont Sen. Bernie SandersBernie SandersTrump thought biker rally crowd would resemble ‘I Have a Dream’ speech Sanders supporter challenges Wyo. delegate allocation Snowden mocks Trump for refusing to debate Sanders MORE, is closing the gap in the latest national polls (although Clinton did also eke out a victory in the Nevada caucuses last weekend). The field of GOP candidates continues to dwindle and reality TV star Donald TrumpDonald TrumpTrump Tower to have heightened security during GOP convention Carson: US present course set for 'carnage and death' Senate fight brews over Afghan visas MORE is leading the pack after stumbling in Iowa but rebounding with resounding victories in New Hampshire and South Carolina. Yet, in an election year already filled with drama and intrigue, the sudden and surprising death of Supreme Court Justice Antonin Scalia only thickens the plot.

ADVERTISEMENT
President Obama wasted little time announcing his intention to nominate someone to the high court. In doing so, depending on his pick, he has the potential to influence the outcome of the 2016 presidential race as well as shape the balance of the U.S. Senate. Senate Majority Leader Mitch McConnellMitch McConnellHillary's ObamaCare problem In House GOP, Ryan endorsement of Trump seen as inevitable McConnell: Trump White House will have ‘constraints’ MORE (R-Ky.) unequivocally stated the Senate will not take up any prospective nominee put forth by the president. This places the race for the White House on a collision course with U.S. Senate elections — a high-stakes game of chicken that pits Obama against Senate Republicans and GOP presidential candidates.

Despite the heated war of words on both sides of the aisle, Obama can look to his predecessors for guidance on making appointments in the sunset of his presidency. The GOP's favorite son, President Reagan, nominated Supreme Court Justice Anthony Kennedy with just over a year left in his presidency. Justice William Brennan received a recess appointment weeks before Election Day in 1956, but was subsequently nominated to a full term in 1957. Conversely, the one time in U.S. history a Supreme Court seat was left vacant for nearly a year or longer was in the aftermath of Justice Abe Fortas's resignation on May 14, 1969. His seat was left vacant for 391 days until Harry Blackmun replaced him on June 9, 1970.

As this nomination fight takes place amid the backdrop of a presidential election, the glare of this looming battle exposes many of the subplots confronting the race. The number of Republican voters in the early primaries is outpacing Democratic voters by a wide margin. Sanders, surprisingly, has been competitive with Clinton among women, as evidenced by the results in Iowa and New Hampshire; Clinton has turned the tide in Nevada, but is still trailing badly with young voters. Meanwhile, a majority of the African-American community appears to be solidly in the Clinton camp, as both she and Sanders vie for this crucial vote in South Carolina. However, it remains unclear if they will turn out in record numbers for a Clinton candidacy similar to Obama's historic presidential runs.

President Obama had until recently faded into the background during the primary process, but will now stand front and center in the wake of an unexpected Supreme Court opening. Nominating a highly qualified jurist that will energize women and African-Americans is certainly on Clinton's and Sanders's wish lists, as well as Senate Democrats. Such a pick might energize the Democratic base but will surely stimulate an already excited Republican electorate. Clearly, such an enormous choice is fraught with peril.

Given the enmity between the two parties, any appointment could lead to a protracted battle that spills over into the general election, emboldening the Democratic challenger by exciting the party's appeal among women and people of color (should Obama indeed pick a woman of color). Then again, if viewed as overreaching, this could play well into the hands of the GOP. Either way, victory is not assured to either side in an election season that has already seen the status quo turned on its head.

Perhaps the game-changer in this highly charged electoral equation is the 24 Senate seats Republicans will be defending this year. Should McConnell follow through on his threats to forgo a floor vote on any Supreme Court nominee, voters are well within their rights to replace Republican senators with members keen on fulfilling their constitutional duty. Race and gender undoubtedly will serve the president and his party in a nomination battle but exemplary qualifications, a sterling judicial record and adherence to the Constitution trumps such matters. President Obama's decision carries enormous weight. His next step will not only shape the court but potentially the makeup of the U.S. Senate and the presidency as well. A supreme choice indeed.

Ham is author of the national bestseller, "The GOP Civil War: Inside the Battle for the Soul of the Republican Party." He is a contributor to the P.O.T.U.S. Channel on SiriusXM Radio and provides political analysis for the BBC. Follow him on Twitter @EKH2016.

More in Presidential Campaign

Sanders should run against the Trump Republicans

Read more »