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How the politics of the next nomination will play out

This post substantially revises and supersedes my earlier one on how the political parties will likely approach the Scalia vacancy, in which I had concluded that Ninth Circuit Judge Paul Watford was the most likely nominee.  On reflection, I think that Attorney General Loretta Lynch is more likely.  I also think that the Republicans will eventually permit the nomination to proceed on the merits and reject it on party lines.

In thinking about how to respond to the vacancy on the Supreme Court, the administration has two priorities.  First, fill the Scalia seat by getting a nominee confirmed.  The stakes could not be higher:  the appointment could flip the Supreme Court’s ideological balance for decades.  Second, gain as much political benefit as possible and exact as heavy a political toll as possible on Republicans, particularly in the presidential election.  Precisely because of the seat’s importance, this is the rare time that a material number of voters may seriously think about the Court in deciding whether to vote at all and who to vote for.

Those priorities reinforce each other.  The Republican Senate leadership has staked out the position that no nomination by President Obama will move forward.  Because Republicans hold the Senate majority, they have the power to refuse to hold confirmation hearings before the Judiciary Committee and/or a floor vote on the nominee.  So, any effort to replace Scalia is dead on arrival unless the political dynamic in the country forces Republicans to change their minds and allow the nomination to proceed.

Not surprisingly, Republican priorities are the exact opposite.  Fundamental conservative legal victories over the past two decades hang directly in the balance.  To take just one example, Ted Cruz is exactly right to say that a more liberal replacement for Justice Scalia is very likely to overturn the Supreme Court’s recent recognition of a Second Amendment right to possess firearms or at least render it a nullity as a practical matter.  There are dozens of other examples.  Conversely, a Republican appointee would not only preserve those victories but continue the Court’s steady move to the right.

In addition, blocking President Obama’s nominee is good politics for important subsets of Republicans.  Most directly, the Supreme Court is a signal issue for the conservative Republican base in a way that it is not for core Democratic constituencies.  Since at least Richard Nixon, conservatives have effectively rallied against the Supreme Court as a liberal institution that is out of control.  We see that dynamic today in Republican candidates’ remarkable attempt to frame even Chief Justice Roberts as a failure, based on his votes to uphold the Affordable Care Act and the administration’s implementation of the Act.

Those competing priorities put the political parties in a deadly embrace from which neither will easily budge.  The administration feels a constitutional responsibility to press for the confirmation of a nominee and every political advantage in doing so.  Republicans cannot accede to that effort because their base will not permit it.

In all of this, it is impossible to overstate the importance of Ted Cruz, who will make the appointment a central issue in the campaign and who will drive enormous pressure against proceeding with any nomination.  That pressure is likely to be too great for the Republican Senate leadership to overcome, even if it concludes that it would be better politics to do so.

Cruz is extremely sophisticated regarding these issues both legally and politically.  He understands the stakes perfectly and is a thought leader among Republicans regarding the Court.  He immediately understands the value to his own personal candidacy – and he would say, to Republican prospects in the general election – in taking the hardest possible line against permitting President Obama to replace Scalia.

On some level, this is a reprise of Cruz’s filibuster that shut down the government in an effort to rally conservatives in support of defunding the Affordable Care Act.  The filibuster motivated the Republican base and dramatically raised Cruz’s own personal profile.  But the general consensus is that it hurt the Republican brand overall among independent voters.

All that said, I do think that an Obama administration nominee may in fact receive a vote.  As Amy described in an earlier post, there is no genuine precedent for refusing to act on a Supreme Court nomination because of an impending presidential election.  Senate Republicans’ current contrary position invites the administration to put them in a very difficult political position in which there is substantial pressure from important blocs of voters to act on the nomination.

As a result, I think that the most likely scenario is that if Republicans can come up with even a slender substantive thread on which to base an objection to the nominee, they will seize on it and vote the nominee down on the merits.  For example, Danielle Gray, an exceptionally qualified black woman lawyer who served in the Obama administration, would be voted down on the ground that she was one of the architects of the Affordable Care Act.  Avril Haines, a widely respected female lawyer who is the current Deputy National Security Advisor, would be voted down on the ground that she was CIA Deputy Director during a controversy over the CIA hacking into Senate computers.

If the nominee presents a potential substantive ground for objection that the public could take seriously as genuine – even if it seems wrongheaded – I think that Senate Republicans will permit a vote, and reject the nominee.  The nomination would be slow-walked, including with numerous requests for information.  Eventually either a filibuster would be withdrawn or overcome, with Senate Republicans voting essentially as a block.  Any other course than a decisive vote against the nominee invites a certain primary challenge from conservatives in the next election.

So given the dynamic, how does each side proceed?  The administration can pick a nominee who fulfills both its jurisprudential and political goals, without giving Republicans a tool with which to fight back to persuade undecided voters.  Dozens of nominees fit the ideological bill of being sufficiently progressive and changing the Court’s ideological balance if confirmed.  The more interesting question for the administration will be which one creates the greatest political benefit and exacts the greatest political costs for Republicans in the general election.

Democrats have two political priorities:  motivating turn-out by their own voters and persuading independents to vote for the Democratic nominee.  Two Democratic constituencies in particular vote in disproportionately low numbers:  young Democrats and minorities.

The youth vote makes little difference here because the age range for a serious nominee (roughly, forty-five to fifty-two) does not directly touch that constituency.  There are specific potential nominees who would motivate young liberal voters – Senator Elizabeth Warren, for example.  But those nominees are the ones who would give Republicans the opportunity to hold hearings and reject the appointment on an up-or-down vote without serious cost.

Minority voters are a different matter.  Traditionally, black and Hispanic turn-out has trailed white turn-out.  In the 2004 election, the percentages were white 67.2%, black 60.0%, and Hispanic 47.2%.  In 2008, they were white 66.1%, black 64.7%, and Hispanic 49.9%.  The 2012 election was the first in which the proportion of black turn-out exceeded that of whites.  The percentages were white 64.1%, black 66.2%, and Hispanic 48.0%.

Overall, in 2012, the white proportion of the voting population decreased to 71.1% and the minority proportion increased to 28.9% (22.8% black and Hispanic).  For that reason, many attribute President Obama’s reelection to minority turn-out.

The best candidate politically would probably be Hispanic.  Hispanic voters both (a) are more politically independent than black voters and therefore more in play in the election, and (b) historically vote in low numbers.  In that sense, the ideal nominee from the administration’s perspective in these circumstances is already on the Supreme Court:  Sonia Sotomayor, the Court’s first Latina.

On the other hand, I think the President personally will be very tempted to appoint a black Justice to the Court, rather than a second Hispanic.  His historical legacy rests materially on advancing black participation and success in American politics.  The role Thurgood Marshall previously played in that effort is inescapable.  The President likely sees value in providing a counterpoint to the Court’s only black Justice, the very conservative Clarence Thomas.

For those reasons, I think the President will pick a black nominee.  I’ve long said that the most likely candidate for the next Democratic appointment was California Attorney General Kamala Harris.  She is fifty-one.  A female nominee has significant advantages as well.  That is particularly true for the candidacy of the likely Democratic nominee, Hillary Clinton.  For reasons I’ve discussed elsewhere, I think her nomination is difficult to oppose ideologically, given her history as a prosecutor.

If Harris wanted the job, I think it would be hers.  But I don’t think she does.  Harris is the prohibitive favorite to win Barbara Boxer’s Senate seat in the 2016 election.  After that, she is well positioned potentially to be president herself.  If nominated, she would have to abandon her Senate candidacy and likely all of her political prospects.  So I think she would decline.

But Attorney General Loretta Lynch, who is fifty-six, is a very serious possibility.  She is known and admired within the administration.  At some point in the process, she likely would have to recuse from her current position, but the Department of Justice could proceed to function with an acting head.  Her history as a career prosecutor makes it very difficult to paint her as excessively liberal.

Perhaps Lynch’s age would give the administration some hesitancy.  They would prefer to have a nominee who is closer to fifty.  But because the nomination would principally serve a political purpose anyway, I don’t think that would be a serious obstacle.

The fact that Lynch was vetted so recently for attorney general also makes it practical for the president to nominate her in relatively short order.  There is some imperative to move quickly, because each passing week strengthens the intuitive appeal of the Republican argument that it is too close to the election to confirm the nominee. Conversely, a nomination that is announced quickly allows Democrats to press the bumper sticker point that Republicans would leave the Supreme Court unable to resolve many close cases for essentially “a year.”

I think the administration would relish the prospect of Republicans either refusing to give Lynch a vote or seeming to treat her unfairly in the confirmation process.  Either eventuality would motivate both black and women voters.

Other black women have been mentioned as possible candidates.  For example, California Supreme Court Justice Leondra Kruger is well known as a former lawyer in the Obama administration, but at thirty-nine probably too young.  I also discussed Danielle Gray above.  She is widely admired, but lacks the stature of the attorney general.

Two other potential white female nominees are likely to get close looks.  Judge Jane Kelly is a young Obama appointee to the Eighth Circuit who was unanimously confirmed by the Senate.  Homeland Security Advisor Lisa Monaco is even younger at forty-seven.

In a previous version of this post I pointed to Paul Watford, an Obama appointee to the Ninth Circuit, as the most likely nominee.  Watford is in his late forties.  He is well respected and reasonably well known in Democratic legal circles.  I still think he is a serious candidate, but the fact that Lynch is a woman gives her nomination a very significant advantage.  The same goes for two well-respected appellate judges who are black, the Second Circuit’s Ray Lohier and the D.C. Circuit’s Robert Wilkins.

The favorite candidate in Democratic legal circles is generally Judge Sri Srinivasan of the D.C. Circuit, followed by Patricia Millett of the same Court.  Both are recent Obama appointees.  Srinivasan is a Indian American.  Millett is a woman.  Both would fit the ideological profile that the administration would want.  But neither provides the same political benefit.

So while I will update my research on potential nominees, at this point I think that Attorney General Lynch is the most likely candidate.  I think the administration is likely to nominate her, that the Senate will initially refuse to proceed with the nomination but ultimately accede after delaying the process significantly, and then vote her down on party lines.  At that point, Republicans will slow-walk a follow-up nominee and claim that it is too close to the election to act on the candidate.

Recommended Citation: Tom Goldstein, How the politics of the next nomination will play out, SCOTUSblog (Feb. 14, 2016, 5:47 PM),