Obama carefully timing Supreme Court decision

Obama carefully timing Supreme Court decision
© Cameron Lancaster

Move quickly — but not too quickly.

That’s the strategy President Obama and his top aides appear to be adopting as they work through the process of nominating a successor to the late Supreme Court Justice Antonin Scalia. 

ADVERTISEMENT
The deliberate approach is meant to draw a contrast with the snap judgment the White House says Republicans made just hours after Scalia’s death, when they pledged to reject any nominee Obama put forward.

The White House staged a photo opportunity last Friday evening of the president carrying a thick binder about potential nominees from the Oval Office to his residence, where he reviewed the materials over the weekend.  

And press secretary Josh Earnest was eager to share Monday that Obama has been working the phones with prominent Republican and Democratic senators as he considers his list of Scalia replacements. 

Obama faces somewhat of a time crunch if he hopes to get his nominee confirmed, but aides stress that he will not rush a decision. 

“There’s still 11 months left in the president’s term here, which provides ample time for the president to fulfill his constitutional responsibility and ample time for the Congress to fulfill their constitutional responsibility,” Earnest said Monday.

Experts see it as an attempt to preempt criticism that is sure to come from GOP senators that Obama is trying to ram through a nominee before he leaves office next January. 

“The White House is expecting every objection under the sun, so they are taking any step they can take to alleviate that criticism,” said Stephen Vladeck, a law professor at American University. 

“I think the White House would have always approached this process carefully and very deliberately,” he continued. “What’s making the contrast so stark is the reaction we’ve seen from the Republican leadership … I think the GOP is going to make a lot of hay about how fast the nominee comes out no matter what route the White House takes.”

Obama faces long odds in getting any nominee confirmed in an election year, so winning the public relations battle is a top concern of the White House and Democrats.

It’s rare for a Supreme Court seat to open up in an election year, but the White House is arguing it has precedent on its side. Obama and Democrats have pointed to the unanimous confirmation of Anthony Kennedy in February 1988. 

But Republicans note that while Kennedy was confirmed in an election year, he was actually nominated by then-President Ronald Reagan in November 1987. The last time a candidate for the high court was nominated and confirmed during an election year was 1940, when then-President Franklin Roosevelt nominated Frank Murphy to replace the late Pierce Butler. 

To back up their argument that Obama shouldn’t nominate anyone, GOP senators seized on remarks Vice President Biden made in a 1992 Senate floor speech, saying that then-President George H.W. Bush should wait to fill any vacancy on the high court, if one arose, until after the presidential election. 

“If the president of the United States insists on submitting a nominee under these circumstances, Senator Biden, my friend from Delaware, the man who sat at a desk across the aisle and at the back of this chamber for more than 35 years, knows what the Senate should do,” Senate Judiciary Chairman Chuck GrassleyCharles (Chuck) Ernest GrassleyGOP senators eager for Romney to join them Five hurdles to a big DACA and border deal Grand jury indicts Maryland executive in Uranium One deal: report MORE (R-Iowa) said Monday in a floor speech.

Biden said in a statement that his 1992 comments were being taken out of context by Republicans. 

“This is not an accurate description of my views on the subject,” he said. “In the same statement critics are pointing to today, I urged the Senate and White House to work together to overcome partisan differences to ensure the Court functions as the Founding Fathers intended.”

Judging by his past appointments, Obama could put forth a nominee as soon as next week to replace Scalia, who passed away on Feb. 13. It took Obama 25 days to nominate Sonia Sotomayor to the high court in 2009 and 31 days to choose Elena Kagan the following year.

Acting quickly would have practical benefits for Obama. The Senate is set to adjourn for the summer earlier than usual, on July 18, to accommodate the Republican and Democratic conventions. 

Since 1981, the average length for the entire nomination and confirmation process has been 113 days, according to the Congressional Research Service. If Obama were to put forth a nominee this week, it would mean that the confirmation process would conclude in mid-June under normal circumstances, leaving little cushion for a lengthier hearing. 

And that’s setting aside the fact that many top Republicans have been hesitant about holding hearings, let alone a vote, for an Obama nominee. 

Nominating someone soon would also force Republicans to “have as long a clock as possible to run out,” Vladeck said.

Democrats are also eager to see the fight get underway.

A few hours after Scalia’s death, Senate Minority Leader Harry ReidHarry Mason ReidDems search for winning playbook Dems face hard choice for State of the Union response The Memo: Immigration battle tests activists’ muscle MORE (D-Nev.) said Obama should send up a nominee “right away.”

But a quick decision poses political risks for Obama. 

It could fuel accusations that the president is charging ahead without properly consulting with members of the Senate. 

And it could open Obama up to scrutiny about whether he took enough time to vet his nominee to ensure that he or she could survive tough questions from senators in a confirmation hearing, if one is held. 

Reagan, for example, announced he would nominate Robert Bork to the high court just five days after Justice Lewis Powell said he was stepping down. Bork’s nomination was derailed when Senate Democrats seized on many of his past statements to paint him as an extremist, something the White House was ill prepared to handle. 

Putting forth a nominee too soon after the funeral of Scalia could also spark accusations that Obama isn’t respecting the justice’s family.

The president faced a torrent of criticism, mostly from Republicans, over his decision not to attend the funeral. 

Biden, who has a relationship with Scalia’s family and requires less invasive security, attended the funeral instead. And people close to Scalia’s family indicated the absence of Obama, who paid his respects to Scalia Friday at the Supreme Court, was not viewed as a slight.