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Obama's Two-Part Scalia Strategy: Shame and Credible Nominee

Obama's Two-Part Scalia Strategy: Shame and Credible Nominee

Wednesday, 24 February 2016 06:44 PM

The White House is mounting a two-pronged strategy to force through a replacement for Supreme Court Justice Antonin Scalia: relying on allies to shame the Republicans for their obstruction while showing President Barack Obama in high-minded deliberations over the next nominee.

In the latest glimpse of the counter-offensive, Senate Democratic Leader Harry Reid of Nevada blasted Republicans on the Judiciary Committee on Wednesday, while Obama published a blog post on an influential, non-partisan legal site describing his criteria for a Supreme Court nominee.

Reid said on the Senate floor that the Judiciary chairman, Republican Chuck Grassley of Iowa, had "surrendered every pretense of independence" and adopted "a narrow, partisan mission of obstruction and gridlock." Grassley’s committee would vet and hold hearings on any nominee.

Obama, meanwhile, wrote on SCOTUSblog that the court decision is one "to which I devote considerable time, deep reflection, careful deliberation, and serious consultation with legal experts, members of both political parties, and people across the political spectrum."

The goal, according to Democrats and liberal advocates allied with the White House, is to ratchet up pressure in particular on Grassley and Senate Republicans who are vulnerable in elections this November. That may fracture Senate Republicans and raise the political costs of obstructing a nominee for Majority Leader, Mitch McConnell, a Kentucky Republican who seeks to maintain control of the chamber after November’s elections.

The Obama administration is already examining at least one centrist Republican for the nomination: Nevada Governor Brian Sandoval, according to a person close to the process who spoke on condition of anonymity. Sandoval also met with Reid while in Washington this week. Reid later said he would support his home- state governor if nominated.

The White House’s consideration of Sandoval was reported earlier by the Washington Post.

Leftward Tilt

The stakes are obvious. If Obama can win Senate approval of a replacement for Scalia, the new justice would almost certainly tilt the court leftward, yielding a new 5-4 majority on issues such as gun control, campaign finance, abortion and perhaps even the death penalty. Grassley and other Judiciary Republicans said in a letter yesterday that they would hold no hearings or votes on any Obama nominee.

Democratic presidential candidate Hillary Clinton said the letter was "shameful and irresponsible" in a statement.

Justice Not Politics, an Iowa-based group with a self- declared mission of "fair courts," began airing television ads Tuesday in the Des Moines and Cedar Rapids, Iowa, media markets calling on Grassley to hold a hearing on Obama’s nominee. The ads feature video of former Supreme Court Justice Sandra Day O’Connor telling Congress, "let’s get on with it."

Given Republican opposition, Obama is likely to announce a nominee before the Senate recesses on March 21. That would balance the need to demonstrate urgency and provide the longest possible window for confirmation against an imperative to show the public a thoughtful, careful nomination process, said two former administration officials.

The White House will likely wait until after the March 1 "Super Tuesday" presidential primary elections, making the weeks of March 7 and March 14 the most probable window for an announcement, one of the former officials said.

The people asked not to be identified because the White House hasn’t publicly discussed its strategy for the court battle.

Altered Dynamic

Naming a nominee is also an opportunity to alter the political dynamic as the Republican position shifts from an abstract political fight to obstruction of an individual with personality and a life story.

"I think it will be very difficult for Mr. McConnell to explain how, if the public concludes that this person’s very well qualified, that the Senate should stand in the way simply for political reasons," Obama said on Wednesday. "The situation may evolve over time."

Vetting Sandoval, or floating his name as a potential nominee, may be the White House’s first step toward pressuring Republicans. Asked whether a Sandoval pick would change his mind on blocking any Supreme Court nomination this year, Republican Senator Orrin Hatch of Utah said, "I don’t think so."

"I think very highly of him," Hatch said. But he declined to say if Sandoval was qualified for the court. 

Texas’s John Cornyn, the number two Republican in the Senate, said Wednesday that a Sandoval pick wouldn’t change his view. "It’s not about the personality," he said.

Picking Diversity

Given that Obama has already nominated record numbers of minorities and women to federal judgeships, as well as his personal commitment to diversity in the judiciary, he is likely to again choose a woman or minority, said Ed Pagano, a former lobbyist for the Obama White House and former chief of staff to Vermont Senator Patrick Leahy, the top-ranking Democrat on the Judiciary Committee.

Refusing to consider the nominee may then escalate the political discomfort for the all-white, all-male Republican members of the Senate Judiciary who signed Grassley’s letter.

"All the white male senators who signed the letter could be perceived politically as being heavy-handed and unfair, particularly to a woman or minority nominee," Pagano said.

Among options available to Senate Democrats to create more pressure to advance the nominee are holding mock hearings of their own, photo opportunities with Obama’s choice, and, possibly, forcing some form of procedural vote on the Senate floor to put Republicans on record.

In the meantime, the White House has sought to publicly demonstrate the thoughtful deliberation Obama is devoting to his decision.

Thick Binder

Reporters and photographers were summoned on Friday for the opportunity to record images of Obama as he walked from the West Wing of the White House to his residence carrying a thick binder of potential nominees to study over the weekend.

The nomination may be consequential even if Republicans maintain their obstruction.

Any Democratic successor will face great political pressure to re-nominate Obama’s selection, with Senate Republicans’ opposition becoming a cause celebre among Democrats and liberal legal activists, said a Democratic strategist and former administration official.

The Senate’s refusal to consider an Obama nominee may keep qualified candidates on the sidelines, but it’s unlikely to harm the prospects of the person winning confirmation under a Democratic successor, said Melissa Hart, a law professor and director of the Byron R. White Center at the University of Colorado.

“If in fact this gets stonewalled, the next Congress will understand that has nothing to do with the candidate and will likely consider the candidate again," Hart said.

While there has been some speculation that Republicans could consider a court pick in its lame-duck session after the election, McConnell’s statement on Tuesday was unequivocal, making clear the GOP position is that the next president should fill the vacancy.

McConnell could face a scenario in which a new, Democratic Senate and a Democratic president choose a more overtly liberal justice. That isn’t probable, since Democrats are unlikely to have a large majority even if they win the chamber and must defend seats in the 2018 elections.

And at least for now, 60 votes are still required to overcome the minority party’s filibuster of a court justice.

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The White House is mounting a two-pronged strategy to force through a replacement for Supreme Court Justice Antonin Scalia: relying on allies to shame the Republicans for their obstruction while showing President Barack Obama in high-minded deliberations over the next...
obama, supreme, court, strategy, scalia, pick
Wednesday, 24 February 2016 06:44 PM
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