New York Times
By Jonathan Martin and Patrick Healy
February 16, 2016
The
death of Justice Antonin Scalia immediately prompted lofty-sounding
pronouncements from leaders of both parties. But behind the public
statements, the two parties
are engaged in raw political calculations about how to best leverage
the vacancy, underscoring the country’s deep polarization and the
reality of how elections are waged nowadays.
Most
strategists in both parties view the appointment process as a prime
opportunity to galvanize their core supporters in the presidential and
congressional elections.
With partisan preferences increasingly cemented in the American public
and a declining share of swing voters, elections are increasingly won
through mobilizing party members rather than trying to persuade
independent-minded or skeptical voters. That is why
most politicians are reluctant to do anything that defies or
demoralizes their respective voter bases.
This
fact of political life explains why many Republican senators who face
competitive races this year and are from liberal or moderate states
wasted little time in siding
with Senator Mitch McConnell of Kentucky, the majority leader, in
declaring that they would oppose any effort by President Obama to select
Justice Scalia’s successor. It also is why many Democrats would prefer
to see the president nominate someone who could
energize their partisans.
“It
used to be that the focus in campaigns was, How do we win the middle?”
said Glen Bolger, a longtime Republican pollster. “Now it’s, How do we
get more of ours out
than they get of theirs out?”
Given that backdrop, here are some possible paths for Mr. Obama to follow, and the likely political consequences of each.
Republicans Pay a Price
The
scenario that the left would most favor and the right most fears would
be the selection of a barrier-breaking nominee who could spur liberal
support and turnout in
November. The name most frequently discussed in this situation is
Attorney General Loretta Lynch, who would be the first black woman to
serve on the court. A former United States attorney and Harvard Law
graduate, she drew the votes of 10 Republicans when
she was confirmed as attorney general.
The
combination of her gender and race, her ample qualifications and her
previous support among Republicans would put immense pressure on them to
at least vote on her
nomination. Such a selection would also allow Mr. Obama to hammer at
Republicans if they did not approve her, helping the Democratic
presidential nominee and putting Republican senators up for re-election
in moderate or liberal-leaning states with substantial
black populations — such as Mark S. Kirk of Illinois, Rob Portman of
Ohio and Patrick J. Toomey of Pennsylvania — in a political vise.
This
approach could be especially beneficial to Hillary Clinton, if she
emerged as the standard-bearer of a fractured Democratic Party, and help
her energize grass-roots
activists who may have favored Senator Bernie Sanders of Vermont in the
primary contest. A nominee who excites the coalition of young, female
and nonwhite voters who lifted both of Mr. Obama’s White House campaigns
could energize Mrs. Clinton’s efforts.
The
president could throw a pitch down the middle, nominating someone who
is eminently qualified if not a demographic history maker and who, under
normal circumstances,
would be acceptable to a significant bloc of Republican senators.
A
pool of these potential candidates can be found among the appellate
court judges who were nominated by Mr. Obama or President Bill Clinton
and confirmed with some Republican
ayes. Possible choices are Merrick B. Garland of the United States
Court of Appeals for the District of Columbia Circuit, who was confirmed
in 1997 with 32 Republicans voting in favor, and Jane L. Kelly of the
Eighth Circuit, who was confirmed, 96 to 0, in
2013.
Such
a nomination might split the Republicans more than it energizes the
Democrats. Judge Kelly, for instance, is a former Iowa public defender
who drew support in 2013
from her state’s senior Republican senator, Charles E. Grassley, the
chairman of the Senate Judiciary Committee. Mr. Grassley said on Tuesday
that he would not rule out a committee hearing on Mr. Obama’s nominee,
an apparent shift from his earlier statement
that the next president should fill the vacancy. Judge Garland is from
Illinois, the home state of Mr. Kirk. Some Republican senators have a
history of supporting Democratic nominees who are widely regarded as
reasonable choices.
If
Senate Republicans do end up fracturing, with some open to the nominee
and others opposed, the Republican presidential candidates are sure to
react with fury because
they are counting on a united and energized party come November.
Conservative voters, in turn, could end up disheartened if they think
Republicans in Washington are giving into Mr. Obama.
While
such divisions would delight Democrats, their party’s activist wing may
be underwhelmed by a nominee who is an apparent moderate or who does
not make history. The
last white man who was nominated to the court by a Democratic president
was Stephen G. Breyer in 1994.
A Dream Candidate for Liberals
If
Mr. Obama wants to protect his legacy on health care, immigration and
other issues, as well as rally Democratic voters in the presidential
election and key Senate races,
he could shrug off the idea of accommodating Republican concerns and
instead choose an admired progressive politician or an established
liberal judge.
This
would be tantamount to declaring political war. Yet after more than
seven years of wrestling with Republicans, Mr. Obama may think that he
has little to lose by provoking
them, especially if he is reasonably confident that a Democrat will win
the White House in November. He could choose from among the younger
stars in the party, like Kamala D. Harris, California’s attorney
general. He might select a left-leaning judge like
Diane P. Wood of the Court of Appeals for the Seventh Circuit in
Chicago. Or he could opt for the dream candidate of the left: Senator
Elizabeth Warren of Massachusetts.
Some
Democrats believe that the nomination of Ms. Warren, a deeply admired
voice in the party on economic inequality, could be a unifying move
after what is turning out
to be a bruising battle between Mrs. Clinton and Mr. Sanders. Such a
nomination could be a balm for liberals and young people if Mr. Sanders
loses the nomination, given that he and Ms. Warren are strong critics of
corporate malfeasance and public corruption.
While Ms. Warren is a Harvard Law School professor, she may be
reluctant to put herself through a nasty confirmation battle, and it is
not clear that Mr. Obama holds her in high regard: He did, after all,
pass up the chance to nominate her to head the Consumer
Financial Protection Bureau.
Still,
the selection of such a strong progressive voice would energize
Democratic and Republican voters because of the possibility of a
five-member liberal majority on
the Supreme Court.
Make It Awkward for Republicans
This
may be the most far-fetched choice in an era of polarization, but Mr.
Obama could put Republicans in an awkward position by nominating an
admired Republican figure.
This
may lure a few votes from Republicans while also suggesting that the
president was acting above the partisan political fray. And it could
appeal to those independent
voters or moderate Republicans who are tired of Washington gridlock.
Using a court pick to woo voters from the opposition is not without
precedent: President Dwight D. Eisenhower, a Republican, used a recess
appointment to nominate William J. Brennan Jr.,
a Roman Catholic Democrat from the Northeast, in October 1956. (The
next month, Eisenhower carried New Jersey, Brennan’s home state, the
next month along with the rest of the Northeast.)
In
the remote possibility that he decides to go down this path, Mr. Obama
would appear to have two options. He could name an older Republican who
would not serve on the
court for long. (Senator Orrin G. Hatch, a former chairman of the
Judiciary Committee and the chamber’s longest-serving Republican, will
turn 82 next month.) Or he could tap a younger Republican who is
politically moderate enough to appeal to Democrats but
would still hem in Republicans. Gov. Brian Sandoval of Nevada supports
abortion rights and, after the court’s same-sex marriage decision last
year, said his state’s arguments “against marriage equality are no
longer defensible.” He is also from a fast-growing
and increasingly diverse swing state, is Hispanic and was state
attorney general and a federal judge before becoming governor.
The Srinivasan Scenario
If
Senate Republicans refused to consider an Indian-American nominee to
the Supreme Court, would they inflame and energize Democratic voters as
much as if they blocked
a black or Hispanic nominee? It is a proposition involving identity
politics that the party would like to avoid.
By
a Senate vote of 97 to 0, Srikanth Srinivasan was confirmed in 2013 as a
judge on the Court of Appeals for the District of Columbia Circuit. If
nominated, he would
be the first Indian-American in line for the Supreme Court. Such a
landmark choice could inspire Asian-Americans, who are one of the
fastest-growing constituencies in the Democratic Party. But he would not
be a wish-fulfillment candidate for many African-Americans
— a larger part of the Democratic base — the way Ms. Lynch would be.
By
delaying or denying a confirmation hearing for Judge Srinivasan, Senate
leaders would also risk giving ammunition to Democrats who charge that
the Republican Party
is hostile to immigrants. Judge Srinivasan, who was born in India and
attended Stanford Law School, has a record of achievement in the United
States that Republican and Democratic presidential candidates celebrate
as an immigrant success story. Some Democrats
say that, just as many Hispanics vote for Democratic presidential
candidates because of their immigration reform plans, Asian-Americans
could be galvanized as a voting bloc if Republicans are seen as shabbily
treating one of their own.
If
Judge Srinivasan is nominated, it could create a complication for one
Republican presidential candidate: Senator Ted Cruz of Texas has said
that the two men were friendly
from their days as law clerks in Richmond, Va., and he credited Judge
Srinivasan with doing a “very fine job” at his 2013 Senate confirmation
hearings.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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