Obama needs to decide how best to respond to Republican threats of total scorched earth obstruction of all nominees, no matter who and what, because Obama is a radical madman.
What if he called their bluff about him being a radical madman? How might he do so?
What if Obama offered to take the unprecedented step of submitting to Senate Republicans a list of (oh, say) 10 possible, moderate, Democratic nominees for the Supreme Court? Take the 10 most unobjectionable, mildest mannered, middlest of the road names from the long list of likelies prepared against this day. Don’t let this be the time we reach for a liberal pick. Go as mild and bland as humanly possible, while of course emphasizing professional accomplishment.
The President understands Republicans are frustrated that this vacancy arose on his watch. He appreciates that they feel Scalia was one of their own, and they want him replaced with one of their own. But Presidents nominate Justices. It says so in the rules. It’s not reasonable to wait another whole year for the next President to nominate, then maybe a year more for the process to play out. The people’s business needs a new Justice in less than 22 months. But, in deference to Republican control of the Senate – and the divided state of the country – the President is offering Republicans the chance to vet his picks for the sort of radicalism they say they find intolerable. Let Republicans pick any 5 of these 10, certifying them as – on the face of it – mainstream likelies of the sort you might expect a moderate Democratic President to nominate. Then Obama, duly-elected President of the United States, shall pick 1 of the 5 as his nominee. And we move back to the Senate for actual confirmation hearings.
Either Republicans would agree to this or not.
If Senate Republicans refused this generous offer (practically a David Brooks fantasy of bipartisanship, no?) and persisted in refusing even to consider any Obama nominee, that would amount to encroachment on the executive’s enumerated powers. (What if Obama further offered to let Senate Democrats help draw up the list of 10 candidates, so it wasn’t just the tyrant Obama doing the picking?) I don’t know what would happen, but at least it would be clear any constitutional crisis wasn’t down to Obama’s radicalism.
If Republicans agreed, then somehow couldn’t find five acceptable names even on the most moderate of lists; or if they got as far as shooting down whomever Obama picked, even from their own pre-vetted five; then Obama could proceed down the list to the next name. This would eventually result either in a moderate Democratic confirmation or, more likely, public display of Republican radicalism, disarray and dysfunction, over the long course of an election year. Make Republicans fight with themselves about what a moderate Democrat Justice should look like, by just plain giving them the chance to pick between the most plain and moderate of options.
Democrats have a strong interest in getting any Democratic nominee confirmed to replace Scalia, rather than none. They ought to be entitled to such a confirmation, procedurally (though it stings Republicans.) That doesn’t mean they are going to get it (since it stings Republicans.) But Democrats should be able to force Republicans to make plain the dynamics of the situation, if Republicans really are going to stonewall. It has nothing to do with Obama. Democrats should not let Republicans suggest otherwise.
Let this be Crooked Timber’s open thread on the Supreme Court situation. (I obviously have my idle thoughts and speculations. Perhaps you do, too.)