President Obama has one major goal in picking a successor to Supreme Court Justice Antonin Scalia: make it as hard as possible for Republicans to oppose his nominee.
In his first extended comments on the selection process, Obama said that he intends to pick an “indisputably” qualified candidate who should garner respect on both sides of the aisle.
With just 11 months left in office, Republican leaders argue that Obama is in no position to fill the vacancy — particularly because Scalia’s successor is likely to determine the ideological tilt of the court.
Senate Majority Leader Mitch McConnellMitch McConnellJuan Williams: Trump's 100 days wound GOP Judd Gregg: Trump gets his sea legs This week: Congress returns to government shutdown fight MORE (R-Ky.) has said the next president should pick the conservative jurist’s replacement and pledged to reject any nominee that Obama picks.
Even if they don’t succeed in pushing a nominee through, Obama and his Democratic allies want to make sure that Republicans pay an electoral price for their opposition.
Obama could ramp up the pressure on Senate Republicans by nominating someone they have voted for in the past, such as a lower-court judge.
Most crucially, Democrats want to make sure that Republicans cannot find a legitimate reason to block the nominee.
The president and his advisers at the White House began gaming out the nomination process behind the scenes shortly after Scalia’s death was announced on Saturday.
Obama and his aides have refused to comment on a potential short list, instead pointing to the hundreds of judges he has nominated to the federal courts. But that group, in itself, provides some clues.
As he has with other recent nomination battles with the Senate, Obama will likely look to candidates who have star-studded credentials, have a track record of working with Republicans and have already been confirmed by the Senate with relative ease.
“Because we are in such a unique moment in history, with politics as polarized as ever, my understanding is that he will look for someone who can be a consensus nominee,” said Michele Jawando, vice president of legal progress at the Center for American Progress, which has close ties to the White House.
That could mean nominating a qualified, moderate candidate Republicans would appear unjustified in blocking.
“It has to be someone who is un-opposable on the merits,” said Stephen Vladeck, a law professor at American University.
“Everyone is fixated on how this is a presidential election year, but it’s also a Senate election year,” Vladeck added. “For vulnerable Republicans, if there’s a perception the Republicans are obstructing an unobjectionable nominee, that could be a big issue in some contests in November.”
Obama cut off a reporter at the press conference who asked if his comments meant he would pick a “moderate.”
“No. I don’t know where you found that,” he said. “You shouldn’t assume anything about the qualifications of the nominee, other than they are going to be well qualified.”
Another factor Obama is likely to consider is whether his pick would break racial or gender barriers on the court.
If Obama succeeds in getting a minority or female justice on the bench, it would be the first time in history the majority of Supreme Court justices were not white men. Plus, blocking a nominee of color could be bad politics for Republicans.
“I do think that is something that the White House will continue to consider,” said Jawando, former general counsel to Sen. Kirsten GillibrandKirsten Gillibrand Dems urge Trump to include Northeast Corridor tunnel project in infrastructure bill Dems petition FDA to ban potentially toxic chemical from shampoos, body wash Trump’s Army pick faces tough confirmation fight MORE (D-N.Y.) “They have done the most of any White House on racial and gender diversity on the court, but there is more to be done [in other areas].”
Scalia himself wrote in his dissent from the court’s June decision on same-sex marriage that the institution suffers from a lack of religious, professional and geographical diversity.
D.C. Circuit Court of Appeals Judge Sri Srinivasan is one potential candidate who could fit the bill.
Srinivasan, an Indian immigrant who was raised in Kansas, would be the first Hindu on the high court. He’s worked in the Obama administration and has proven to be a confirmable candidate in a GOP-controlled Senate. The upper chamber voted 97-0 in 2013 to put him on the federal appeals court.
Srinivasan, 48, served as a deputy solicitor general under Obama before being nominated to the D.C. Circuit. He also clerked for GOP-appointed Judge J. Harvie Wilkinson III and Supreme Court Justice Sandra Day O’Connor.
But the pick could risk alienating progressive Democrats because Srinivasan represented Exxon Mobil and former Enron CEO Jeffrey Skilling while in private practice.
Another potential pick is Jane Kelly, a judge on the 8th Circuit Court of Appeals who received a 96-0 confirmation vote in 2013. Kelly’s nomination to the appeals court was strongly backed by Senate Judiciary Committee Chairman Chuck GrassleyChuck GrassleyTrump eyeing second Supreme Court seat Grassley: Another Supreme Court vacancy likely this summer Sweeping change at DOJ under Sessions MORE (R-Iowa), which could improve her chances of at least receiving a hearing.
Merrick Garland, the chief judge on the D.C. Circuit, has been floated as a compromise choice if other options fall through.
Going with a consensus candidate could rule out some possible nominees who are viewed as partisan choices, including California Supreme Court Justices Tino Cuellar and Goodwin Liu.
If Obama wanted to diversify the high court in more ways than one, he could turn to Attorney General Loretta Lynch, the first African-American woman appointed attorney general. Unlike other possible choices who have appeared in news reports, Lynch does not serve on the federal bench.
SCOTUSblog publisher Tom Goldstein wrote Sunday that Lynch is “the most likely candidate” because of her background and experience.
Lynch was a bipartisan favorite as a hard-charging U.S. Attorney in New York, but she endured one of the longest delays in history to be confirmed as attorney general. The Senate vote largely fell along partisan lines.
Homeland Security Secretary Jeh Johnson, an African-American and former Justice Department and Pentagon lawyer, has also received attention as a potential Scalia replacement. But he has come under fire from Republicans over Obama’s immigration enforcement policies.
The White House and some Democrats predict that Senate Republicans would reverse course and hold hearings and a vote for an Obama nominee.
After adopting McConnell’s stance over the weekend, Grassley on Tuesday would not rule out holding committee hearings on Obama’s Scalia replacement.
Sen. Thom Tillis (R-N.C.) on Tuesday said his party risked being labeled as obstructionist if they maintain their blanket opposition.
But so far, McConnell has been backed by 2016 presidential candidates Sens. Ted CruzTed CruzWeek ahead in tech: Trump's antitrust pick heads before Senate Week ahead: Senate panel to vote on Trump's FDA pick Warren builds her brand with 2020 down the road MORE (Texas) and Marco RubioMarco RubioTop Trump officials push border wall as government shutdown looms Rubio defends Trump: 'This whole flip-flop thing is a political thing' Rubio: Shutdown would have 'catastrophic impact' on global affairs MORE (Fla.) as well as four vulnerable GOP incumbents: Ron JohnsonRon JohnsonTrump should work with Congress to block regulations on prepaid cards Five reasons to worry about the ShadowBrokers hack Border Patrol could drop polygraph requirement for new agents: report MORE (Wis.), Rob PortmanRob PortmanFive things to know about Trump's steel order Mexico: Recent deportations 'a violation' of US immigration rules EPA union asks Pruitt for meeting over talk of closing office MORE (Ohio), Kelly AyotteKelly AyotteHow Gorsuch's confirmation shapes the next Supreme Court battle THE MEMO: Trump set to notch needed win with Gorsuch Gorsuch sherpa: Dems giving GOP ‘no choice’ on nuclear option MORE (N.H.) and Pat Toomey (Pa.)
Republican leaders might see more downside to going back on their pledge to block any Obama nominee, something that could rile the conservative base months before voters go to the polls.
Carl Tobias, a professor at the University of Richmond School of Law, isn’t betting that opposition from Republicans will soften.
“There are lots more senators who are joining him,” Tobias said of McConnell. “I’m not very optimistic. I‘m trying to keep an open mind but there aren’t many minds open right now.”