Within moments of the untimely passing of Supreme Court Justice Antonin Scalia, the political posturing began in terms of what should happen next with respect to the open seat on the high court. Senate Majority Leader Mitch McConnell came out of the box immediately, stating that President Obama should defer selecting a Supreme Court candidate, so that the next elected President could handle that responsibility in accordance with the apparent wishes of the electorate as part of the upcoming Presidential election.
President Obama, on the other hand, followed up quickly by stating that it is his full intention to carry out his presidential responsibilities during his presidency by naming a Supreme Court candidate to be considered by the Senate. So, now what?
President Obama does have nearly a year left in his presidency — he still is the President of the United States. Accordingly, he is entitled to propose a Supreme Court justice with the advice and consent of the Senate. Many times in the past, this meant that the Senate simply inquired whether the candidate had the intellect and experience to be qualified to be a justice, while also making sure that the candidate did not have skeletons in the closet (like a criminal record) that would make sitting on the high court inappropriate.
Of course, as we know, this process has become far more political in recent times. But if the Republican Senators block President’s Obama’s selection(s) such that the Scalia seat stays open for what would be more than a year practically, this could look bad for their party — especially during a presidential campaign year. Donald Trump’s mantra of “delay, delay, delay” might resonate with some in his camp initially, but that could end up growing stale with the passage of time.
Furthermore, with an eight-justice Supreme Court, in the event of 4-4 ties, the decisions of the federal appellate circuit courts would remain intact — with potentially interesting end results. Some of the decisions could wind up with more “liberal” results than if the cases ultimately were decided by a nine justice Supreme Court, and there also could be more “conservative” results in other cases.
If there is a long delay with the next President being called upon to select the Supreme Court candidate, the selection potentially could be made by a President Hillary Clinton or even President Bernie Sanders. Such a next Democrat President would have ample time to put up one “liberal” candidate after another. At some point, one of them would have to be confirmed to avoid a total gridlock meltdown. One could imagine all sorts of crazy scenarios — would President Clinton/Sanders appoint Barack Obama to the high court? Or, would President Clinton/Sanders select Anita Hill, to the chagrin of Justice Clarence Thomas? Probably not in either case — but this just goes to show that continual delay could have unintended consequences.
President Obama might select someone like Sri Srinivasan, who recently was confirmed by the Senate 97-0 to the D.C. Circuit Court of Appeals. If anything, with his experience on that court, he now is only more qualified than before. But detractors might argue that it is one thing to be on a federal appellate court, and it is entirely another matter to sit on the Supreme Court.
Perhaps President Obama will put up a trojan horse “flaming liberal” candidate in the first instance, knowing that this candidate might be shot down. Then, he could select his true candidate, believing that the Senate might not reject two candidates in a row.
Those in favor of President Obama moving forward expeditiously point out that President Reagan appointed Justice Kennedy with about one year left in his Presidency — and Justice Kennedy was confirmed by the Senate. And, former Justice Sandra Day O’Connor has come out recently stating her belief that President Obama should move forward as he plans, so that Justice Scalia’s seat does not remain open for too long. Interestingly, it has been reported that Senator McConnell wrote a law review article a long time ago that expressed the view that it is up to the President to use his Supreme Court justice selections to alter the ideology of the court, and that the Senate should discount the philosophy of any candidate of proposed by the President.
If the shoe were on the other foot, we probably would see the opposite arguments coming from the respective parties right now. Indeed, once upon a time the Democrats sought to and ultimately did bring down the Supreme Court justice candidacy of Robert Bork.
At this point, the very best move might be for President Obama to select an highly respected centrist Supreme Court nominee, with the Senate moving forward with bipartisan support to approve this nominee. Stay tuned!
Eric Sinrod (@EricSinrod on Twitter) is a partner in the San Francisco office of Duane Morris LLP, where he focuses on litigation matters of various types, including information technology and intellectual property disputes. You can read his professional biography here. To receive a weekly email link to Mr. Sinrod’s columns, please email him at email@example.com with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.