The death of Justice Antonin Scalia on Saturday creates a major challenge for President Barack Obama in the run-up to the 2016 election. Obama has said he will nominate a replacement to the U.S. Supreme Court, even though Senate Republican leaders have made it clear they prefer the seat remain vacant for now. Should the president go along, and not nominate anyone, liberals will be enraged at his passivity.
If Obama does nominate a justice quickly, should he pick a liberal whose rejection will galvanize Democratic voters to turn out for the party’s nominee in November, in hopes of a second chance? Or should he pick a moderate who has an outside chance of actually being confirmed, creating the possibility of a liberal balance on the court even if a Republican wins in November?
These questions are essentially unprecedented. The modern era of highly political confirmation fights began in 1987 when President Ronald Reagan nominated Judge Robert Bork and the Democratic Senate blocked him. In the almost 30 years since, we haven’t had a situation in which a justice suddenly died or resigned in the middle of a term at the end of the presidency when the Senate was controlled by the opposing party.
If Obama can’t nominate a successor to Scalia and get the justice confirmed, it will be almost a year until a new president can be inaugurated and nominate a replacement. So not only will the current Supreme Court term result in cases being decided by only eight justices, but also the term that begins in October 2016 and ends in June 2017.
Two years of the court operating at less than full strength represents a genuine challenge to the institution and to the legitimacy and precedential weight of its decisions in that time.
For Obama, choosing not to nominate a new justice seems like a mistake. True, the nominee may be blocked in the Senate. The filibuster option still exists for opposing Supreme Court justices, even after Senate Democrats used the “nuclear option” to change the rules governing other judicial nominations in 2013.
Yet Obama has made unilateral executive action a hallmark of his last term in office. Declining to nominate a justice simply because of the unlikelihood of confirmation would look like weakness.
What’s more, by refusing to nominate someone, Obama could alienate the liberal base that the Democratic Party needs to win in 2016. It’s easy to imagine the scenario: Obama says he won’t make a nomination; Bernie Sanders announces he’d nominate a strong liberal; Hillary Clinton finds herself with no choice but to agree with Sanders. Both Democratic presidential candidates would be criticizing the president, which is not good political practice in an election where neither of the Democrats is as personally popular as Obama.
It seems probable, then, that Obama will make a nomination - but that the nominee will be a sacrificial lamb to be blocked by Senate Republicans. Who should the lamb be? What features should the lamb have?
One option would be to pick a strongly liberal candidate who probably wouldn’t be confirmed by a Republican Senate anyway, no matter the timing of election cycle - like California Supreme Court Justices Goodwin Liu and Leondra Kruger. If the nominee will never be a justice, then the choice is a kind of free shot for the president to express his liberal values.
In a perfect political world, such a judicial nominee would also be someone whose rejection by the Republican Senate would galvanize the Democratic base without jeopardizing the eventual Democratic presidential nominee with moderate voters. The point of the sacrifice would be to energize liberals when the conservatives cut the lamb’s throat.
One drawback of this approach is that Obama could be criticized for politicizing the confirmation process still more than it’s already been politicized - and with some reason.
Another twist is that a big brouhaha over the nomination of a liberal might bind a future Democratic president like Hillary Clinton to renominate the same person if she were elected. If the candidate were too liberal to be confirmed by the Senate even in a new presidential term, then the sacrificial lamb would be a poison pill, promising a defeat for Clinton in the early months of her own presidency.
That leaves Obama with the strategic option of nominating someone very moderate and in theory eminently conformable - like Judge Sri Srinivasan of the U.S. Court of Appeals for the D.C. Circuit. There’s a small chance the Republicans might confirm such a candidate, although it seems unlikely. If the Senate refuses to consider the candidate, the Democratic presidential candidates can use this as evidence of the Republican Senate acting in bad faith. And a Democratic president could renominate such a candidate and get him or her through.
This isn’t an exciting strategy - but it’s probably the right one, for the court and the country.
Noah Feldman is a law professor at Harvard.