I’ve been getting this question a lot and thought I would share some thoughts.
I touched on this within hours of the announcement of Justice Scalia’s death in Justice Scalia’s Death and Implications for the 2016 Election, the Supreme Court and the Nation. I said then that if the President chose a hard liberal nominee there’s no way that this person would get confirmed by the Republican majority Senate, but there was a chance with a more moderate nominee.
Since I wrote that, Senate Majority leader Mitch McConnell has said there should be no nomination or hearings or vote, and many Republican Senators have backed him up, including Sen. Orrin Hatch this morning (who has been a Republican leader on these issues for decades).
Some have said that the Republican announcement so early was a stupid move, because now Democrats can paint Republicans as obstructionist. A better course, they argue, would have been to argue against the President’s nominee and, as Donald Trump put it, “Delay, delay, delay.” Others say that the announcement was important to please the base of the Republican party, which cares deeply about this issue.
Given the Republican announcements, I expect things to play out as follows.
The President will nominate someone with impeccable credentials who is unlikely to engender controversy, someone who has recently faced confirmation by the Senate and passed through easily. Think Sri Srinivasan and Paul Watford. Loretta Lynch is way too controversial, and for this reason I think Tom Goldstein is completely wrong to say she’s the most likely nominee. A Lynch nomination would allow Republicans to delay, delay, delay with a straight face. A Srinivasan or Watford nomination would not.
There will be countervailing pressures on Senators about a hearing and a vote. On the one hand, the base will strongly argue, as I’ve already heard, that Democrats have been unfair to Republican nominees and there’s no reason to give Obama an appointment which, at least for a time, can change the Court. There will be talk on both sides of precedents. All of that history is kind of besides the point. Never came during such an intense period of polarization, with polarization on the Court lining up so neatly with political party affiliation.
The question of whether an Obama nominee will get a hearing will depend upon the political pressure brought to bear on those Republican Senators who are up for reelection and vulnerable. I expect that if those Republicans get a lot of voter disapproval for blocking a stellar Democratic nominee, there will be a hearing and a vote. If it is a real moderate, some Republicans could even vote for the President’s nominee. If there is not a lot of pressure there will not be a vote.
Assuming there is no vote, I expect Democratic nominee (most likely Hillary Clinton) to pledge to nominate the same person upon being elected. I expect the Court to be an issue for Democrats like it has never been before. It will energize both sides’ bases.
My guess is that with the political pressure there will at least be a judiciary committee hearing. There may even be an up or down vote on the floor. But I think the odds are against a confirmation of a Supreme Court Justice. The Senators who would be honest and oppose an Obama nominee on the merits might quote Obama himself on the nomination. As I recount in the last chapter of Plutocrats United, which discusses campaign finance reform and the future of the Supreme Court, Obama opposed Roberts not because of his competence but his ideology. Consider the statement then-Senator Obama made against the nomination of John Roberts to be Chief Justice of the United States in 2005:
There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge. He is humble, he is personally decent, and he appears to be respectful of different points of view. It is absolutely clear to me that Judge Roberts truly loves the law. He couldn’t have achieved his excellent record as an advocate before the Supreme Court without that passion for the law, and it became apparent to me in our conversation that he does, in fact, deeply respect the basic precepts that go into deciding 95 percent of the cases that come before the Federal court—adherence to precedence, a certain modesty in reading statutes and constitutional text, a respect for procedural regularity, and an impartiality in presiding over the adversarial system. All of these characteristics make me want to vote for Judge Roberts.
The problem I face—a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts—is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases—what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.
It would do this country a great service for people to recognize that, posturing on both sides aside, this is about ideological control of the Supreme Court.