The President Gets to Make His Choice
[The President] shall nominate, and, by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court,
--Article II, Section 2, Clause 2 of the U. S. Constitution
Not that the White House needs any advice, but the moment Antonin Scalia is laid to rest, the president should put forward a centrist nominee, preferably a woman, Latino, or African American nominee who has undergone one or several judicial background checks already at lower courts. And there are many good choices out there. In doing so, he should point out that as president who won two elections he gets to do this. He should also point out that there is no constitutional requirement that corporate conservatives control at least 5 votes on the court.
Obama should point out that for all their whining about his operating outside of the Constitution, the Senate GOP is in no position to operate outside of the Constitution themselves in refusing a vote on that nominee. Despite the moronic blathering from the GOP clown car last night at their debate, the Senate cannot demand that a president not make a constitutionally-empowered appointment simply for political purposes, nor can that Senate refuse to act on that nomination.
He should point out that if the Senate Judiciary Committee doesn't act and vote on that nominee by May, he will spend the summer heading into the conventions browbeating the GOP for usurping powers not granted to the legislative branch, namely the power to block actions expressly granted to the executive. And with that, the GOP fall narrative about Obama's imperial power grab goes kaput.
And Obama should also not be shy about attacking the GOP every week starting in June for blocking a woman, a black, a Latino, from even getting a vote. And yes, he should pointedly ask if the GOP would block a white male from getting a vote.
Of course the Senate GOP has a right to reject any nominee he puts forward; they are under no obligation to affirm his nominees. But they also have no constitutional right to block any vote through inaction. And taking no vote on a centrist who has undergone a judicial screening already is clearly a vote to usurp the powers they themselves blame Obama for exceeding. Obama should make it clear privately, just as George W. Bush did publicly with the eventual Alito selection, that a rejection of a centrist nominee would only lead to him nominating someone more leftist, and forcing them to openly block that selection in the midst of the campaign.
Regarding political leverage, can the White House pressure Senate Republicans into holding a vote on a choice? Well, Grassley would be under pressure by those in his caucus to keep the choice bottled up in committee, so that GOP 2016 incumbents could avoid not only a floor vote but pressure from their right wing at home. Yet in looking at those up for reelection this year, in a year where the GOP is already at risk of losing the Senate, how difficult can the White House make it for some of these GOP senators to avoid a vote on a well-qualified woman or African American?
Kelly Ayotte (New Hampshire)
Roy Blunt (Missouri)
Richard Burr (North Carolina)
Chuck Grassley (Iowa)
Johnny Isakson (Georgia)
Ron Johnson (Wisconsin)
Mark Kirk (Illinois)
John McCain (Arizona)
Lisa Murkowski (Alaska)
Rob Portman (Ohio)
Tim Scott (South Carolina)
Pat Toomey (Pennsylvania)
My choice, as I said almost six years ago, is Chief Justice of the 7th Circuit Diane P. Wood, a highly-regarded jurist by all sides, who is known for building consensus and who has experience working well with both Justices Posner and Easterbrook in that circuit, thereby undermining any arguments from Judiciary Committee chairman Chuck Grassley about her being a non-consensus pick. If she can work well with Posner and Easterbrook, and has their respect, nothing the airheaded Grassley could say matters. The only real downside to Wood, sadly, is that she is 65 and would serve far shorter than the typical conservative choices of the last thirty years.
Again, just my thoughts. This is a political process, and it needs to be handled as such.