Gaming out Obama’s options for a Supreme Court nomination

Photo: Joe Ravi, available under CC-BY-SA 3.0

The death of Supreme Court Justice Antonin Scalia on Saturday shook the political news cycle, and put into sharp relief an argument often made in Presidential campaigns but not always at the forefront of campaign messaging: with a Supreme Court which frequently produces 5–4 decisions and can seem to teeter on the edge between a liberal and conservative majority, who picks the next Supreme Court Justice has an enormous effect on the country. I hesitate to say that the impending nomination fight is “unprecedented” — after all, it’s been less than a week and President Obama has yet to put forth a nominee for Senate Republicans to oppose — but it certainly poses an interesting set of questions and possible outcomes, which should be a lot of fun to watch.

Let’s take a minute to think through the different ways in which this vacancy might play out over the course of 2016.

Scenario 1: Obama nominates an eminently qualified moderate

I see this as the most likely scenario. In keeping with his past Supreme Court nominations, President Obama nominates an non-ideological moderate to the high court. This could take one of two forms: either a Federal Circuit judge who has recently been confirmed unanimously by the Senate (someone like Sri Srinivasan, or others on a short list which Politico’s Josh Gerstein put together), or a “non-traditional” (meaning someone not already a judge) nomination like US Attorney General Loretta Lynch, Senator Amy Klobuchar, or California Attorney General Kamala Harris.*

Any of these possibilities would be in keeping with Obama’s past approach to Supreme Court appointees, and would likely be a prudent political move. If such a nominee were confirmed (however unlikely that looks at this point), the court would have lost arguably its most outspoken and ideological member and gained a left-of-center moderate with a noncontroversial record.

This approach would have the political benefit of casting Senate Republicans as obstructionists with no desire to actually govern, assuming they follow through on threats to oppose any nominee the President puts forth. It would also probably be the choice Obama himself would consider as being a good steward of the country: nominating someone he believes to be a fair and competent jurist, not one who is politically or ideologically motivated. And whatever the chances of such a nomination being successful, if his nominee is confirmed, Obama’s legacy would include the appointment of three well respected, non-polarizing Justices who are unlikely to do significant damage to his legislative legacy after he leaves office.

Scenario 2: Obama nominates a more ideological or polarizing Candidate

While to my mind this is less likely, it is not unimaginable that Obama would nominate a “Scalia of the left,” effectively picking the last knock-down, drag-out political fight of his presidency. Despite his history of nominating relative moderates to the Supreme Court, his nominations of Justice Sonia Sotomayor in 2009 and Justice Elena Kagan in 2010 were made in the context of a first-term President facing a precarious (and, for his party, ultimately disastrous) mid-term election. At this point in his presidency, Obama’s personal incentives are sharply different: while the makeup of the Court and the results of the 2016 elections will have an enormous impact on his legacy, they have essentially no bearing on his ability to govern.

Potential nominees which would fall into this category include former Massachusetts Governor Deval Patrick, former United States Attorney General Eric Holder, and Senator Elizabeth Warren. Though any of these would likely stand next to no chance of confirmation, the argument can be made that Obama could nominate the ghost of Ronald Reagan and the Senate still would not confirm. If Obama truly believes that the Senate will not confirm (or, more likely, even vote on) anybody he nominates, then the nomination becomes more an exercise in presenting and fighting for a vision for the Court, and by extension a vision for the country and the Constitution. The downside to this tactic is that it gives the Republicans running for election in 2016 a reason other than simple obstructionism to oppose a nominee — whether the President believes that will have a substantive effect on the race or not is unclear. On one hand, blocking a Supreme Court nomination for nearly a year would put a pretty fine point on the argument that the GOP is unwilling — or unable — to govern, and that they should not, therefore, be given the Presidency or continue to hold the Senate. On the other hand, the President and the Democratic Party are not lacking in evidence of an obstructionist Republican Party with no interest in governing, and that evidence does not seem to have done them a lot of good electorally.

Scenario 3: Obama does not nominate anyone, leaving the seat open until the 45th President takes office

This scenario seems almost too unlikely to bother writing about, but there are a few points to make here. Obama’s statement that he will nominate someone to the Supreme Court and his belief that not doing so would be dereliction of duty notwithstanding, there are a very small handful of reasons he would not nominate anyone:

  1. If Obama is unable to find anyone willing to accept his nomination (almost understandable, given what the process of confirmation hearings is likely to look like), he may be forced to leave the seat empty.
  2. If Obama believes that the failure to successfully appoint a Supreme Court Justice would do more harm to his legacy and his party’s chances in the 2016 elections, he could take the customary Presidential neutralism in the election of his successor to the extreme of declining to nominate anyone in the name of not politicizing the Supreme Court. (See also: Atychiphobia, a condition which President Obama has shown absolutely no signs of over the course of his entire public life.)
  3. If Obama is absolutely confident that Democrats will win both the Presidency and the Senate in 2016, leaving the seat vacant could be an attempt to allow a Democratic President to nominate someone, and to have that nominee’s confirmation hearings take place in a Senate that would be able to confirm a much more liberal nominee than would be possible currently. This would be a huge, risky move, and essentially the polar opposite of reason 2, above.
  4. If Obama, knowing as he does that in politics one has to pick one’s battles carefully, decides that this is not the fight on which he wants to spend whatever remains of his political capital, he could essentially give away the nomination in order to win another big, political fight. Again, a risky move, and probably one that he would only undertake in the name of something like major gun control legislation or another one of the remaining big-ticket policy ambitions of his presidency.

Moving past what Obama might do and how the Senate would react between now and January 20th, 2017, let’s take a look at the longer-term implications of the nomination as it relates to the results of the 2016 election. There are four possibilities here: Obama does/does not successfully nominate a Justice, and a Republican/Democrat wins the Presidency in 2016.

Result 1: Obama’s nominee is confirmed, but a Republican wins the Presidency in 2016

I see this, in the medium-long term, as an even-across swap: Obama replaces a conservative justice with either a moderate or ideological liberal, temporarily shifting the Court’s majority to Democratic appointees, likely to produce liberal majority opinions. However, with three of the current eight Justices well into their 80s by the end of the next President’s first term (Ginsburg will be 86, Kennedy 83, and Breyer 81), at least one retirement is likely between now and the 2020 elections. Both Ginsberg and Breyer were appointed by Bill Clinton, and assuming that one of them retires during the next President’s term, their replacement would shift the balance back to 5 Republican appointees to 4 Democratic ones. While any rulings the Court hands down during the period between the confirmation of Justice Scalia’s replacement and the confirmation of the next Justice would certainly be profoundly effected, the balance of power on the Court would shift back to the current status quo in relatively short order, producing no truly long-term changes.

Result 2: Obama’s nominee is confirmed, and a Democrat wins the Presidency in 2016

This would have a more profound effect on American jurisprudence. If Obama’s nominee were confirmed, the balance on the Court would shift to a majority of Democratic appointees. Following this, if the Democrats hold the White House going into 2017, the most likely (based solely on age) seats which the 45th President will have the opportunity to fill will either maintain a 5–4 majority of Democratic appointees, or in the case of Reagan appointee Anthony Kennedy, move to a 6–3 majority.** The degree to which that appointee is a “Scalia of the left” or a more moderate jurist probably depends in small part on who the Democratic nominee is, and in much larger part on the makeup of the Senate in 2016.

Result 3: The seat remains vacant, and a Republican wins the Presidency

The result of this scenario would cement the Republican-appointed majority on the Court, replacing Scalia with another conservative and paving the way for Republicans to either maintain their 5–4 advantage on the court in the case of a Kennedy retirement, or more likely, expand it if Ginsburg or Breyer retires. In the most extreme example of this scenario, with a Republican President appointing Scalia’s replacement and appointing all three of the (hypothetically) retiring Justice’s replacements, we could see a court in which 7 of 9 Justices were Republican appointees. The effects of that scenario would be especially profound, as it would not only be likely to produce clear, predictable, conservative opinions on nearly all cases which the court hears, but because of the requirement that 4 Justices vote to hear a case at all, it would also have a dramatic effect on which cases are argued in front of the court in the first place.

Result 4: The seat remains vacant, and a Democrat wins the Presidency

Unless I am missing something here, this scenario would (once the next Supreme Court nominee is eventually confirmed, sometime in early 2017) be identical to Result 2, in which Obama’s nominee is confirmed and he is succeeded by another Democrat. This scenario would certainly have a different (if predictable) effect on the cases which the Court hears between now and then, as a 4–4 tie in the Court results in the lower Court’s decision being upheld.

Finally, just for fun, let’s touch on a few of the crazier ideas and possibilities floating around out there. I’ll let others debunk/promulgate the growing list of conspiracy theories about Justice Scalia’s death itself, and instead focus on some of the weirder outcomes of selecting his replacement.

  1. A Bush v. Gore-style contested election is heard by a deadlocked 8-member Supreme court. As we discussed above, a 4–4 tie is not unusual when the court either has a vacancy or one of the Justices recuses him or herself from a case — in these instances, the decision of the lower court is affirmed, but no precedent is set. This may result in weird, if not earth-shattering, Circuit splits persisting until the case is heard again by the Supreme Court. But, what happens in a case like Bush v. Gore, in which there is no lower court ruling to affirm? I certainly don’t know — if you have any predictions or know of a precedent for this situation, I’d love to hear it.
  2. President Obama nominates himself to the Supreme Court. Of all the unlikely scenarios, this one has got to be near the most unlikely. I don’t know that there’s a way to statistically evaluate how unlikely this is as there might be for the Bush v. Gore scenario above, but I’d have trouble deciding which scenario to put my money on as less likely to occur. Interestingly, there doesn’t seem to be any legal reason he would be prevented from nominating himself, and if confirmed, resigning the Presidency and letting Joe Biden steer the ship for the next 11 months or so. In a sense, he’d be handing Senate Republicans the gift of a lifetime: the chance to actually strip Obama of the Presidency. Of course, he’d also be asking the Senate to grant him a lifetime licence to interpret the Constitution, but let’s ignore that fact for the sake of this argument. He’d join William Howard Taft as the only other President to become a Supreme Court Justice after his Presidency — but, he’d certainly be the only President to ever nominate himself to the Court. I’ll add to the argument against this being within the realm of possibility (as if we needed more reason to think it won’t happen) by remembering that it took Senate Republicans a stunning 162 days to “vote Eric Holder out of office” by confirming Attorney General Loretta Lynch — and all Holder wanted to do was quit his job.
  3. The seat remains vacant for the remainder of Obama’s term in office, and President Hillary Clinton nominates Obama to the Supreme Court. I suppose this would be possible regardless of who the next President is, but it seems unlikely that Obama would be President Sanders’ pick, and nearly impossible that he would be nominated by a Republican President. But, in the case of Obama being nominated by President Clinton, stranger things have happened. It would also add a somewhat poetic coda to Hillary Clinton’s offer in 2008 to nominate Obama as her vice presidential running mate, and Obama’s subsequent nomination in 2009 of Clinton to be Secretary of State.
  4. A Democrat wins the White House, but Republicans maintain their majority in the Senate and simply never confirm anybody to become the next Supreme Court Justice. In the version of this scenario above, I have assumed that the Senate makeup following the 2016 elections does effect these calculations, but only insofar as they temper the 45th President’s ability to appoint an ideological Justice. However, if we consider the possibility that a Senate which continues to be controlled by a Republican majority following the 2016 elections simply refuses to confirm any nominee to the Supreme Court (not just someone nominated by a Democratic president who happens to be in his final year in office, as the arguments thus far have specified), the Supreme Court would be rendered essentially moot. An 8-member Supreme Court would, as we discussed above, simply affirm the judgement of lower courts in the case of 4–4 deadlock, and these decisions would not set a legal precedent. While the results would be chaotic — Circuit splits being affirmed with no precedent set to correct either conflicting judgement would result in the law of the land varying along the geographic boundaries of the Federal Circuit Court— it would actually result in something that many Republicans have called for already: an end to the control of one branch of Government by an un-elected panel of Judges with lifetime appointments. This situation could theoretically continue until Democrats controlled both the White House and a 60-seat majority in the Senate. Failing that, it would take a Democratic President refusing to appoint (or a Democratic majority Senate refusing to confirm) an 8th Justice following another retirement, death or impeachment, and bringing the total number of Justices down to 7, thus breaking a perpetual 4–4 tie.

Whether the passing of Justice Antonin Scalia does indeed produce the political story of the year, as it seems to promise, or not remains to be seen. And it is entirely likely that whatever does end up happening will be even stranger than any of the options I’ve been able to think of.

*Attorney General Harris has indicated that she would not accept the nomination, saying that she remains focused on her campaign for the United State Senate.

**To be fair, though Justice Kennedy was a Republican appointee to the Court, his opinions are frequently the swing vote in 5–4 decisions, and it is difficult to predict with any certainty whether he will side with the Court’s liberals or conservatives in any given case.