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.