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.
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