Why Obama Needs a “Sacrificial Lamb” for the Supreme Court

President Obama’s nominee will have to endure all the pain of the confirmation process, likely without an actual confirmation to make it worth it.

The U.S. flag flies at half-staff at the Supreme Court on Wednesday in honor of Justice Antonin Scalia, who died last weekend at age 79.
AP Photo/J. Scott Applewhite
Feb. 18, 2016, 8:01 p.m.

Nom­in­at­ing someone to the Su­preme Court is a lot dif­fer­ent when that nom­in­ee is al­most guar­an­teed to fail.

The se­lec­tion of a new Su­preme Court justice is the most thor­ough, ar­du­ous vet­ting pro­cess in Wash­ing­ton, but for dec­ades, pres­id­ents have been look­ing for ba­sic­ally the same thing: someone who’s qual­i­fied, who they be­lieve would be an as­set to the Court, who’s on their end of the polit­ic­al spec­trum, and is likely to be con­firmed by the Sen­ate.

Pres­id­ent Obama needs to find all of those things in his next nom­in­ee, but this time the or­der is even taller: He also has to find someone who’s will­ing to spend at least a year as a polit­ic­al foot­ball, slog­ging through a bru­tal, hope­lessly par­tis­an pro­cess—with very little chance of be­com­ing a Su­preme Court justice at the end of it.

“What I as­sume, and what I think a lot of people as­sume, is this nom­in­ee will be a sac­ri­fi­cial lamb,” said Wil­li­am Yeo­mans, a law pro­fess­or at Amer­ic­an Uni­versity who served as Sen. Ed­ward Kennedy’s chief coun­sel on the Ju­di­ciary Com­mit­tee.

Some leg­al ex­perts and vet­er­ans of past con­firm­a­tion battles say the White House should treat this nom­in­a­tion like any oth­er—nom­in­ate the strongest can­did­ate and dare Re­pub­lic­ans to re­ject him or her. Oth­ers, see­ing the ex­tremely low odds of a suc­cess­ful con­firm­a­tion, think the White House should fo­cus on try­ing to “win by los­ing”—nom­in­at­ing the per­son whose de­feat would most em­bar­rass Re­pub­lic­ans and gal­van­ize Demo­crat­ic voters.

The real­ity is that the ad­min­is­tra­tion prob­ably needs to do both. In short, Obama needs to find someone who’s un­ques­tion­ably qual­i­fied for the Su­preme Court, but who’s also qual­i­fied—and will­ing—to serve as a polit­ic­al mar­tyr for Demo­crats in­stead.

It’s not ne­ces­sar­ily a great pitch, par­tic­u­larly be­cause no one can pre­dict how badly the next year might bruise Obama’s nom­in­ee, and how that would af­fect his or her chances of be­ing re­nom­in­ated un­der a Pres­id­ent Clin­ton or a Pres­id­ent Sanders.

“Some­body could emerge from this pretty beat up,” said M. Miller Baker, who worked on Scalia’s nom­in­a­tion and then for Ju­di­ciary Com­mit­tee Re­pub­lic­ans dur­ing the con­firm­a­tions of Justices Clar­ence Thomas and Ruth Bader Gins­burg.

On the oth­er hand, if Sen­ate Re­pub­lic­ans really won’t lift a fin­ger to con­sider the nom­in­ee—no hear­ings, no votes, no chance of ad­van­cing—then it’ll prob­ably be pretty easy for a Demo­crat­ic pres­id­ent to re­nom­in­ate that per­son, even if it’s not for Scalia’s seat.

The next pres­id­ent could make as many as three more ap­point­ments to the Su­preme Court, not in­clud­ing Scalia’s seat. (Justices Gins­burg, An­thony Kennedy, and Steph­en Brey­er will all be older than 80 by the middle of the next pres­id­en­tial term.) And Clin­ton or Sanders would be draw­ing from roughly the same pool of can­did­ates as Obama.

Be­ing picked now doesn’t ne­ces­sar­ily make it less likely that a par­tic­u­lar can­did­ate will even­tu­ally end up on the Su­preme Court, but it makes the path to get there more un­cer­tain and po­ten­tially ris­ki­er, and hands more con­trol over the nom­in­ee’s fu­ture to today’s Sen­ate Re­pub­lic­ans.

As­sum­ing Obama’s pick isn’t con­firmed be­fore he leaves of­fice, the nom­in­ee’s fate will de­pend on the pres­id­en­tial elec­tion. If a Re­pub­lic­an wins, game over. Even if it’s a Demo­crat, the form­al nom­in­a­tion pro­cess still has to start over. Clin­ton or Sanders could send Obama’s nom­in­ee back up to the Ju­di­ciary Com­mit­tee, or they could use their new-ad­min­is­tra­tion hon­ey­moon to put their own mark on the high court.

How Re­pub­lic­ans handle the pro­cess this time will af­fect that de­cision. Maybe they will dig in so deeply that the nom­in­ee be­comes a sort of hero to Demo­crats. Maybe they’ll find a way to shift their op­pos­i­tion from Obama to the nom­in­ee. No one knows wheth­er the GOP will simply ig­nore Obama’s nom­in­a­tion, or form­ally re­ject it.

“There is something about hav­ing a vote that makes the re­jec­tion fi­nal and of­fi­cial, and in form it looks prop­er, so that’s prob­ably not help­ful,” Yeo­mans said. But if that vote is clearly just a ref­er­en­dum on Obama—if Re­pub­lic­ans con­tin­ue to ad­mit that they don’t want to con­firm any­one he nom­in­ates, or if their ar­gu­ments against the nom­in­ee are clearly just a pre­text, he said, “then I don’t think the vote is par­tic­u­larly con­sequen­tial.”

Ul­ti­mately, leg­al in­siders said, if Obama’s nom­in­ee handles the next year well, and Re­pub­lic­ans don’t dis­cov­er any ma­jor, dis­qual­i­fy­ing bomb­shells, who­ever toughs it out for the next year prob­ably has a pretty good chance of mak­ing it onto the high court even­tu­ally.

If the next pres­id­ent is a Demo­crat, four lib­er­al nom­in­ees will likely make it onto the Su­preme Court. But only one of them would have to risk a year of scorched-earth polit­ics and en­dure two sets of Sen­ate hear­ings to get there.

The good news for Obama, leg­al ex­perts said, is that none of the can­did­ates can likely af­ford to turn him down and wait for an easi­er path in a few years.

“If you do want to keep your pro­spects alive for be­ing on the Su­preme Court, I don’t think you can say no,” Yeo­mans said.

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