Obama says he will nominate a replacement for Scalia (and a contest)

February 14, 2016 • 7:30 am

Well, let the games begin. Today’s New York Times, after reporting on the death of Antonin Scalia yesterday, notes that Obama plans to nominate a successor while he, Obama, is still President:

Speaking to reporters from Rancho Mirage, where he is golfing with old friends, Mr. Obama paid tribute to Justice Scalia, who died earlier in the day at a resort in Texas. The president described him as “one of the towering legal figures of our time,” a jurist who dedicated his life “to the cornerstone of our democracy: the rule of law.”

Note the absence of snark, criticism, or mention of bigotry or hyperconservatism;  this is the classy way to pay tribute to an opponent.

But, he added, “I plan to fulfill my constitutional responsibilities to nominate a successor in due time.”

“There will be plenty of time for me to do so and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote,” the president said. “These are responsibilities that I take seriously, as should everyone. They are bigger than one party, they are about our democracy.

. . . With Democrats and the independents who caucus with them holding 46 seats in the Senate, Mr. Obama faces a challenge in getting the simple majority needed to confirm a nominee, and it would be an even steeper climb to rally the 60 votes needed if Republican opponents mount a filibuster.

While the Times obituary adds that Richard Posner (our University of Chicago professor and federal judge) called Scalia ““the most influential justice of the last quarter century,” Posner also had other thoughts, expressed in a piece in the New York Times last year (“Judge Scalia’s majoritarian theocracy“) and discussed on this site. My view of Scalia’s rulings are, of course, highly critical, but this isn’t the time to rehash those, or even mention them; it’s time to look ahead.

This political season has now become doubly interesting, as Republicans will fight tooth and nail to oppose any nominee with even vaguely leftist leanings, although traditionally the President is given deference in his choice of nominees.

And the contest. The first person to correctly name the successor to Scalia who is confirmed by the Senate will win an audiobook (autographed, if you want) of Faith versus Fact.  If you don’t want that, you can have the new paperback, out in May and with spiffy gold foil in the cover. One name per person, please, and put it in the comments. Contest closes when the nominee is confirmed.

134 thoughts on “Obama says he will nominate a replacement for Scalia (and a contest)”

  1. I don’t know the names of judges, but it seems to me the best tactical action for President Obama would be to nominate one of the Appeals Court justices previously confirmed by the Senate after the GOP gained majority. If they resist, he would be able to publicly point out the hypocrisy in disqualifying someone they had so recently found qualified. Voters see through political behavior that’s obvious, and it could affect the re-election of some senators.

      1. Robert Reich just said his “White House mole” indicates that Sri Srinivasan will be nominated. DC Appeals Court; unanimously confirmed by the Senate about 3 years ago.

    1. By saying something appropriate into a microphone and converting it to an MP3 (OGG, WAV, or other sound file)?
      But a good number of audiobooks are released on conventional CDs or DVDs (“Digital VERSATILE Discs”, not “Digital VIDEO Discs”) in normal packaging. [Looks up to shelves – a BBC “Lord of the Rings” ; Longfellow’s “Tale of Hiawatha”, and some poetry by Attila The Stockbroker).

    1. That would be an excellent political choice. Make the Republicans refuse to confirm a Hispanic nominee and they lose votes in November. He’s not the brilliant legal mind that I’d like, but (as a 4th Circuit judge) he’s more than qualified.

      1. Plus, they unanimously voted him into his current position. The downsides are: Obama already put one Hispanic, and the court needs more women and more diversity in other respects. On the other hand, he’s of Puerto Rican, not Mexican and not even Cuban, descent, so that could be an excellent thing. Plus, I like the idea of Hispanics in general rejecting the Republican party in protest against Republican senators turning a Hispanic away from SCOTUS, just before a presidential election.

  9. The smart pick would be Loretta Lynch. The Senate already confirmed her to the job as Attorney General.

  10. I also like Sara Lynn Darrow, because she actually “worked in the law office of Clarence Darrow.” Wikipedia doesn’t mention any familial connection between them, though.

  11. Nannette Jolivette Brown, who was unanimously approved by the Senate, is and is from the Deep South, and has a Masters Degree in Energy and Environmental Science. I believe she is an African American woman, and while there are still too few women on the court, the only other African American is Thomas, who needs to be upstaged by someone worthy.

    1. While NJBrown is my #1 pick, I’d love nothing more than to see Anita Hill face off with Clarence Thomas at SCOTUS level, case after case. She deserves the chance to destroy him, and he deserves to be so destroyed. Maybe it would cause him the same exit as Scalia just took. Then, Obama could nominate one more.

      For all his nominations, though, the list of those still pending is shockingly long. Here are both: en.wikipedia.org/wiki/List_of_federal_judges_appointed_by_Barack_Obama.
      I chose from it candidates who were unanimously voted up, then looked for those whom Rep. senators would hurt their careers to turn down.

      1. Unfortunately, Thomas has always been mute during arguments. Otherwise the idea of them in debate would be a tempting incentive.

        2. “Unfortunately, Thomas has always been mute during arguments.”

          That may well be unfortunate. I think it also unfortunate that certain justices apparently feel entitled to repeatedly interrupt/cut off attorneys mid-sentence in their presentations (from audio I’ve heard on NPR). (Do they treat their spouses that way?) Do justices interrupt one another?

          Did I not know any better, I would think I were listening to a congressional subcommittee hearing (led by some John Shimkusesque popinjay/Cruz-Rubio banty rooster character), interrupting/cutting off and otherwise treating rudely some hapless administration official necessarily forced by bigger picture political considerations to hold her/his tongue in response.

          1. Just a day or two ago I read somewhere (NYT, I think) that Roberts was upset with the interrupting too and was going to address it.

      1. And, since McConnell wants us to have a say, maybe we should all (i.e., voters) just email him our nominations.

    2. I doubt that judge Jones would accept the nomination, if offered as, IMHO, he would be most reluctant to put his family through what would be a slimefest of monumental proportions.

      1. That’s pure conjecture, unless you know him. From what I’ve seen and heard, there would be nothing to go after. He appears to be of the highest integrity, all ’round.

        1. The born agains would be gunning for Judge Jones because of his decisions in the Dover Case and the SSM case. They don’t need anything substantial to go on, they’ll just make shit up if necessary.

      1. I think the words, “he’d probably feel compelled to” would be more appropriate than, “he’d have to.” Scalia is the quintessential example of the fact that Supreme Court Justices never “have to recuse” themselves from any case.

        1. Michelle Bachmann thinks Obama will be on the Supreme Court, and this is a sign of the approaching Apocalypse.

          (No, I am not joking. She has really announced this publicly!)

          1. So? Michelle thinks EVERYTHING is a sign of the coming apocalypse! The fact that she was on the House “Intelligence” committee is a good indicator of the problems we “brights” still face in this country….

          2. I hoped once she left the Senate she would fade to obscurity, but she seems to be proving my theory that her doctor suggested she resign for the health of the country. Her delusions are getting more bizarre all the time.

            Besides, everyone knows Obama isn’t the antichrist. It’s Ted Cruz.

          3. Cruz thinks he’s practically one of the Four Horsemen of the Apocalypse. Oh, and he believes in the prosperity gospel. Either The Good Lord will have him start Armageddon during his presidency or he’ll get unbelievably, filthy rich after. Either way, he wins. The rest of us lose.

          6. Not unlike Saudi Arabia heading the Human Rights Council at the UN, while beheading apostates, cutting hands off thieves, public lashings of dissidents and those who might have insulted Islam or Muhammad…

  17. I’d suggest Judge Richard Posner, a distinguished and moderate conservative who has a long history of fairness on the bench. Republicans would shoot down anyone vaguely liberal, but would have a harder time rejecting someone nominally of their own party. Not that they wouldn’t.

    1. The trouble is that Posner is 79. The tendency in recent years is to nominate someone relatively young to perpetuate a president’s influence beyond his own term of office.

    2. Posner is not a viable option. He has served so long on the 7th Circuit Court of Appeals, and has written so widely on so many topics (publishing dozens of books and hundreds of articles, in both the scholarly and popular presses) that the Republicans could tie him up forever in Judiciary Committee hearings.

      Moreover, in his writings, Judge Posner has taken numerous controversial positions, such as advocating for the free-market sale of both adoptable children and body parts, that could be cited as reasons to deny his confirmation. That, and the fact that he was a Reagan appointee to the appellate court, would give the Republicans all the cover they need to vote down his nomination for ostensibly nonpolitical reasons.

  25. Brian Sandoval. Well liked by members of both political parties, has judicial experience, and could a Republican majority Senate actually filibuster a sitting Republican governor?

    1. Tonight’s (24 February 2016 // Wednesday) news feed, Ms / Mr JJH: http://www.tinyurl.com/z3odvo4 re the current State of Nevada’s governor.

      Some entitling Governor / Former Federal Judge Sandoval as a “sacrificial lamb” and other sites nattering on re whether or not, of course, he, or anyone, will even have a hearing – chance.

      Blue

  27. My guess is Sidney Thomas, from the 9th Circuit Court. Was one of the judges considered during the nomination process that ended in Elena Kagan’s confirmation. The court is east-coast lawyer / Harvard Law-esque heavy, so someone from a different background (JD from U.Montana) would be a breath of fresh air. (To be fair, Justice Kennedy was also on the 9th Circuit. But again, Harvard Law.)

    Long shot, admittedly. I think we’re more likely to see more development of the gender/racial diversity of the court, and that’s cool.

  28. There is precedent for a sitting president in their last year of office to have successfully nominated a supreme court justice, as described here:

    1. Former Labor Secretary Robert Reich claims that a source inside the White House has told him that Srinivasan is the choice.

      1. Another reason I trust Sanders’ plans: Reich’s stamp of approval. If he says the economics are do-able, he knows far more than I do, and he could just as easily have sided with his old college chum and former one-time date, Hillary Rodham (Clinton).

  31. I know that I know almost nothing about the US legal system – and nor do I need to know.
    However, I’ll take a bite that hasn’t been tried before. I’ll bet that someone in the Trump team is trying to work out how he can “cut the size of big gubbiment” even further by combining two jobs into one.
    Quoth the minion (for he is not a raven) : “But Master, the Constitution forbids it.” NOT a Trump concern. Constitutions can be fixed like other inconvenient contracts.
    Quoth the minion : “But Master, Obama would never do it.” Don’t tell the Master problems – he wants solutions.
    [Further objections irrelevant. LaTrump has Trumpeted, and all he needs to do is get a few more really big rallies and he’ll get into the Chancellory.
    == Footnote : I initially gender equalised the “minion” as s/he, then thought about how many women would actually take the risk of working that close to Trump, knowing that he’d reject any that didn’t look somewhat like his daughter. That’s a considered “he”, not reflex sexism.

  32. re contest and graduating in y1993, from out of the Sandra Day O’Conner College of Law at the University of Arizona, I recommend to President Obama to please nominate 51 – year – old and Hopi Nation member, Federal Judge Diane Humetewa.

    In history, there are merely two others, both of those men, who are Native American as judges within USA’s Federal Judiciary … … according to here: the Biographical Directory of Federal Judges, y1789 – present of http://www.fjc.gov/public/home.nsf/hisj .

    Blue

  33. I am curious to know the composition of the “Hunting Party” Scalia was hanging out with. Are they people who are frequently involved in litigation? They dissolved puff into thin air when Scalia died. No one even stayed around to praise the judge or lament his death. Very, very curious.

    1. I recognized one of those in a pic taken with him that weekend – Eric Bolling of Fox News, co-presenter of ‘The Five’ and presenter of ‘Cashin In’. Also a devout Catholic.

  34. I’m sure you know this, but I’ll point it out anyway: Obama “says he will nominate a replacement” because of course he will. He is mandated by the Constitution to do so. “He shall nominate” is not a suggestion.

    Then again, there is no hard rule about how many justices should be on the court, though it has been at 9 for a long time (1869). I suppose the GOP could argue that it ought to stay at 8–until they regain the presidency, of course.

    1. This is a gaming vote. The best Obama choices who have a chance in hades have already been named, so I’m aiming to at least get a book out of a GOP win in November.

      I doubt it will be Bill Pryor, but Trump name checked him and I think there is a non-zero chance of a Trump presidency, and lots of GOP types would love that, so… there.

  36. My guess is Jane Kelly, a career public defender and she now sits on the 8th Circuit Court of Appeals. She was confirmed 96-0 in 2013, and Charles Grassley likes her, believe it or not. It would be refreshing to have someone with experience as a public defender on SCOTUS.

  37. Most of the obvious (and some not so obvious) candidates have been named, so I’ll go with a little known long shot:

    Diane Wood, Chief Judge of the United States Court of Appeals for the Seventh Circuit

  38. In an election season where Donald Trump is raking in the votes, Judge Judy and Judge Dredd are probably contenders.

        1. Oh, either.

          (You will of course have noted the deliberate omission from my comment…)

          cr

  42. Best to find someone who has a lot of legal background but not much time as a judge. Long term judges come with all the history for the other side to pick apart. I suspect there are many qualified out there who would turn down the chance. Too much BS and the chances are, the republicans are not going to even bring it to a vote. Meantime any 4 to 4 votes means nothing gets done.

    Anyway, it’s too bad the supreme court has evolved to such a position of power. That was not the intention as is clearly seen by a glance at the Constitution.

    1. The trend — particularly by Republicans (who have been burned by the leftward drift of some of their SCOTUS appointees), but also by the Dems — is to appoint a sitting judge from the federal courts of appeals. The ideal nominee is someone with a few terms on the federal appellate bench — enough to have a track-record of following the ideological playbook, but not so much as to have sat on controversial cases that could give rise to troubling, Bork-like questioning before the senate judiciary committee. Judges fitting this profile also have the benefit of recently having had undergone vetting by the judiciary committee and passing a confirmation vote by the full senate.

      Both of Dubya’s appointees, Roberts and Alito, and one of Obama’s, Sonia Sotomayor, fit this model. Movement conservatives broke into open revolt when Bush II proposed to break the model by appointing Harriet Miers, a friend and political hack working out of the White House (for fear that Dubya had failed to learn the lesson of his father’s appointment of David Souter, a little-known state-court judge from New Hampshire, who went on to establish a fairly liberal voting record on the Court).

  43. President Obama taught constitutional law. He will nominate himself. The Republicans, thinking they have gotten rid of Obama will confirm. He won’t quit his day job so will be the first President to be a Justice at the same time.

    1. Brilliant! And if he does it as a recess appointment, he could even participate in the SCOTUS decision over the inevitable challenge to its Constitutionality. (No, he wouldn’t have to recuse himself — Scalia set the precedent for this when he refused to sit out Bush v Gore despite being best buddies with Dick “Dick” Cheney).

  44. The Republicans’ assertion that they will refuse to consider any Supreme Court nominee President Obama names is the most blatant naked power grab in recent memory.

    The only reason the Republicans can offer for this is completely lame: “the voters should have a say.” Well, the voters did have a say — in November 2012 — and the president they selected then has the right to his SCOTUS selection until the end of his term. That was the original intent of the framers as expressed in the constitution’s text.

    It is one thing to try to game the system so that the clock runs out before the confirmation process can run its course. It is another to do what the Republicans are doing here — thumbing their nose at the constitution and the presidency, while saying “screw you, because no reasons.”

  48. The contest asked who would be CONFIRMED as the next Supreme Court justice, not nominated. So, going against the grain of previous commenters, I’m predicting a Republican: Paul Clement. He might very well be too tempting to resist for a GOP nominee, as Clement is both a former classmate of Obama and one of Justice Scalia’s top law clerks.

    And yes, I’m aware of the implications I’m making here. Winning this contest will be one of the few consolations I’ll get after having to watch a Republican sworn in as our next president.

    1. Clement will have to wait at least until 2021 for a nomination, since none of the rummies in this year’s Republican field are likely to see the inside of the White House other than by paying to take the public tour. Hell, it may take a lot longer than that for the GOP to recover from the self-inflicted wounds it has (and will continue to) incur in the 2016 campaign.

      1. From your mouth to God’s ears!
        Oh, wait: It’s from your fingertips, and there is no God. Well, the sentiment still stands: Maybe it all come true!

  49. Drat – my comment didn’t seem to go through. Anyway, I am predicting Paul Clement, a Republican and former Solicitor General,as the next CONFIRMED justice. (I won’t win if I don’t take chances.)

    1. And he’s both a former clerk of Justice Scalia and a fellow classmate of President Obama at Harvard Law. The irony would be too tempting for a Republican president (Ceiling Cat forbid!) to pass up.

  51. NEWS: Petitions are going around asking Obama to name Elizabeth Warren to the Supreme Court — right now, while the Senate is in recess, so the appointment cannot be blocked.
    This one explains her qualifications well:
    http://action.senatorwithguts.com/page/s/elizabeth-warren-for-scotus.
    I thought she was an economist. I didn’t realize she was a lawyer, nor did I know her personal history, which explains why she gives such a serious care about the rest of us.
    Scalia gave us a parting gift: Timing. If Obama chooses and fills this seat on the Supreme Court while the Senate is in recess, it’s a done deal. I’d miss Warren in the Senate, but perhaps she could do more good and more lasting good as a Supreme Court Justice.

    1. Looks like there is precedent:

      “William J. Brennan, Jr., one of the most consequential justices in the Court’s history, began his time on the bench when President Dwight Eisenhower appointed him during a recess. Brennan’s nomination was confirmed by the Senate after Eisenhower was re-elected.”

      But, the White House, today ruled it out.

      1. If “We The People” clamor for it loudly enough, we might be able to change Obama’s mind. A recess appointment is too perfect to let slip away, knowing the Senate would block their own mothers from getting on the court if they were who Obama chose.

    2. I find that bizarre. Not the appointment, just the implication that the Senate could block it if they were in session but can’t reverse it later if they’re currently not.

      cr

        1. With a recess appointment, the nominee takes the bench immediately, but he or she is still subject to senate confirmation. The appointment is only good for the current session of congress; the appointee must be re-nominated, and go through the full confirmation process, as soon as the next congress is in session.

          Obama may well end up using the recess-appointment option; he certainly hasn’t taken it off the table. But before doing so, he will want to make sure he has the American public solidly behind him, by being the voice of reason at every turn, by playing the game strictly according to Hoyle, while the Republicans reveal themselves to be obstructionists to the core.

          That tactic also has the advantage of possibly fracturing the Republicans (even worse than they are now, and early than they would otherwise fracture at this summer’s convention in Cleveland and the general election campaign). Already, the chairman of the judiciary committee, Iowa Sen. Chuck Grassley, is waffling on holding hearings for an Obama nominee. If such hearings are held, and if Barack sends up a moderate nominee with impeccable credentials and a spotless background, it will grow increasingly difficult for the full senate to deny the nominee an up-or-down vote.

          If the senate or the committee refuses to act, and once he has public opinion at his back, don’t be surprised if the Prez announces that his hand has been forced and is making the recess appointment.

    3. She’s my secret hope as Bernie Sanders’ VP pick, simultaneously sweetening his appeal with women and inoculating him against concerns about his age when assuming office.

      1. I know! Plus, if she leaves the Senate, who could or would fill her shoes, there?

        Still, the VP is probably only 8 years max, and even if presidency follows, that’s another 8 years max. The SCOTUS appointment could be two or even three times that, with permanent effects handed down in legal decisions, not overturn-able by whomever else happens to be voted into the White House next.

        She might make a greater and longer lasting difference from the bench than she can from the Senate, too.

        2. Been a long time since the same party won the presidency again after holding it for two consecutive eight-year terms. (Since FDR won the office four times on his own steam, followed by a single four-year term for Truman, to be precise; and I don’t know that it ever happened before that.) So Warren might not want the VP slot under those circumstances.

          Plus, I’m not sure that Warren, if she has presidential aspirations, would want a SCOTUS nomination even if asked, especially since the odds against confirmation are much worse than they otherwise would be. (Who wants to go through that ordeal, and subject themselves to such close vetting and oppo-research, only for the appointment not to go through?)

          Then again, there aren’t many ambitious lawyers (and ambitious lawyers are the only kind to be in a position to be offered a nomination) who would thumb their nose at the opportunity for a lifetime seat on the most powerful juridical body in the world. So who knows?

  52. I already have a beautiful hardback FvF (not autographed yet though!) and I don’t believe anyone Obama nominates has a prayer of being confirmed by the Reactionary Party. But I’ll throw this guy’s name out because I love the reasoning about the President nominating the GOP’s Worst Nightmare:

    Tino Cuellar

  54. Sandra Day O’Connor, on a tip from a friend who writes this:

    “The only reason she retired was to be with her father who had dementia who then promptly died. Chief Justice Renquist promised her at the that he could hold the fort against Scalia and Thomas, then, he promptly died. She was a damn good centrist justice.

    “If you think Obama can get a liberal appointment thru, you’re dreaming or on drugs. We actually don’t want his appointment to last 30 years. We want a ‘temp’ because of that. We want Clinton’s (or, WOW, Bernie’s) appointments to last 30 years.

    “By putting up O’Conner, we can force an approval, or better the rejection will leave the Republican senators up for election with their asses hanging out in the wind. We could turn the Senate and make that liberal appointment possible.”

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