We’ll get to SCOTUSblog, but first, Hugh Hewitt:
Lame duck presidents don’t get to make successful nominations for lifetime appointments in an election year. Not in 2016. Not for the past 80 years.
Hmmm. What is the definition of a “lame duck president”? The president in office after the next one has been elected, but before he (or she) assumes office? The president in office during an election year? Two years before the election year? Any time in the second term? The first term? Who knows? Hewitt obviously doesn’t, and he doesn’t care.
And presidents don’t get to make a successful nomination in an election year in the past 80 years? Well, that just isn’t true. There is no genuine precedent for the senate refusing to act on a nomination. As Amy Howe writes at SCOTUSblog, “he historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of Justices during presidential election years.”
So Hewitt can’t hide behind “the past 80 years,” or act as though he has the authority of the Constitution. No, he’s just being nakedly political, and that’s really what replace of Justice Scalia is all about. Everyone understands the stakes, and they are high.
That said, Tom Goldstein at SCOTUSblug has an excellent rundown of the politics, and what he thinks is the likely path forward. It’s a good read, but I’ve excerpted the part in which Goldstein describes what he thinks will be the likely nominee:
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.
No matter what happens, this election cycle has just gotten a lot more interesting, hasn’t it?
Tom Goldstein, How the politics of the next nomination will play out, SCOTUSblog (Feb. 14, 2016, 5:47 PM), http://www.scotusblog.com/2016/02/how-the-politics-of-the-next-nomination-will-pay-out/
National Review chimes in with valuable–and I’m sure, sincere–advice for President Obama: “The President’s best course of action is to simply leave the seat open and allow the American people to have a voice in the future of the Court.” LOL
And more deep thoughts from Blogs For Victory founder, Matt Margolis:
See? President Obama is an illegitimate president who shouldn’t have the power to do anything. Honestly, this is what people like Margolis think.