For Democrats and progressives, it is critically important that President Obama’s nominee to succeed the late Justice Scalia becomes the next Supreme Court Justice. Unless…wait for it…unless President Clinton’s or President Sanders’ choice is elevated to the Court.
Filling the vacancy with someone who will generally align with Ginsburg, Breyer, Sotomajor and Kagan rather than the conservative bloc needs to be our goal. The fantasy that the next Justice will be a liberal dream candidate, a new William O. Douglas or Ruth Bader Ginsburg, a 45-year-old Larry Tribe, Saint Elizabeth Warren, whoever, is just that: a fantasy. Give it up — it’s a distraction from the real game.
This is a political issue. The Constitution creates a shared power to choose justices, and there’s no one to tell the Senate it must carry out its constitutional role of considering and voting on a nominee. No one except the people through their expression of disapproval, which they will get a chance to do in November at both the presidential and senatorial levels. If he plays it right, Obama can either (a) get himself a good justice who will uphold federal power and individual rights or (b) get a majority of the country angry at the Republicans during an election year when they are trying to win the presidency and defending a lot of incumbent senators in blue or bluish states. If Obama were foolish enough to try appointing a liberal dream justice he would not get him or her confirmed and, more importantly, he would not succeed in creating a narrative that focused the political blame on the Republicans.
So who should Obama nominate? I’m not a big fan of identity politics, but in the year of “Black lives matter,” he should nominate a moderately liberal black man. Not the Indian-American Srinivasan, not the Asian-American Nguyen, not Merrick Garland from the D.C. Circuit. Not even a black woman: her gender would complicate the narrative of the nominee as it presents to the American people. Thus, a moderately liberal black male jurist or law professor. NOT a pol like Booker or Patrick — that would give the Republicans an excuse to not act, claiming lack of judicial experience or temperament. The choice needs to be someone whom it’s hard to say no to on a principled basis. Someone who would drive black turnout in November (without Obama himself on the ballot) if the Republicans do not confirm him or even give him a vote (“Black man can’t even get a vote from these Republicans in Congress.”) and whom it would strike even the relatively few truly moderate swing voters as unfair not to consider or confirm. Also, it must be someone who would make a good witness if the Republicans do come around, after weeks of media outcry and massive public demonstrations, to giving him a hearing. I don’t know much about Judge Paul Watford from the 9th Circuit, but he or someone like him is what we need to win this fight, either with an eventual grudging confirmation or as the face of Republican unfairness, intransigence, and yes, racism, for many months this year all the way to November.