Could Republican obstructionism lead to a more liberal Supreme Court? | Arkansas Blog

Tuesday, February 16, 2016

Could Republican obstructionism lead to a more liberal Supreme Court?

Posted By on Tue, Feb 16, 2016 at 12:05 PM

I mentioned yesterday that Republicans are enacting a risky political strategy in playing to their base and refusing to even consider any nominee to the Supreme Court from President Barack Obama, telegraphing a plan of total obstruction and guaranteeing that the seat is vacant for a year. That might not play well in close Senate races in blue or purple states. And if the Democrats retake the Senate and the country elects another Democrat into the White House, congressional Republicans might wish they had accepted a relatively moderate choice from Obama when they had the chance. The Washington Post's Greg Sargent has more in a post this morning (note the warning from conservative legal activist Jonathan Adler): 

Republicans may be courting a pretty serious risk: if Obama doesn’t end up getting his pick through, there is a real possibility that President Hillary Clinton could nominate a more liberal replacement than Obama did — and she might also enjoy a Dem Senate majority, making it easier to get that more liberal replacement confirmed. ...

Former top aides to Obama believe he is likely to nominate a potential Scalia replacement who might have at least a marginal chance of getting some GOP support. (One potential nominee, Sri Srinivasan, is “considered a moderate,” has been praised by Republicans, and was confirmed to the D.C. Circuit by a 97-0 vote.) Obama might have a strong interest in picking someone with a chance of getting confirmed, since it would allow him to further shape the High Court before leaving office.

On the other hand, President Hillary Clinton might end up being less constrained in terms of her pick — in 2017, Dems may control the Senate, or barring that, the GOP majority will likely be a lot slimmer. “If Republicans refuse to consider a nominee, they’re likely giving the next president much more leeway in selecting a justice and controlling the direction of the court,” Jonathan Adler, a law professor at Case Western Reserve University, tells me. “That could mean a Republican president selecting a suitable heir to Scalia. But it could also mean a Democratic president nominating an anti-Scalia.”

Now, obviously, this may be a gamble — Adler calls it a “principled risk” and an “all-in bet on the future of the Court” — that Republicans are willing to take. Broadly speaking, the promise of keeping alive the possibility of a GOP president getting to replace Scalia with another conservative might weigh more heavily than the risk of getting a more liberal justice than Obama might nominate, since the court would be tilted in a more liberal direction under either Democrat’s nominee.

There's lots to game out here. A potential Republican Senate minority could try to filibuster a Democratic president's choice in 2017, though they would be in a weak political position to do so. By that time, bear in mind, Republican tactics would have already left the seat vacant for a year. If ever the Dems were going to pull the trigger on a so-called "nuclear option" to confirm a Justice with a simple majority...

Meanwhile, GOPs might try to quickly confirm Obama's lame duck nomination before Clinton took office if they feared that Clinton would appoint someone more liberal. But Obama could withdraw his nomination, setting up Clinton to make the choice instead. There's certainly a real possibility that in playing up their True Conservative bona fides to the base and refusing to consider any nominee, Senate Republicans could end up accidentally setting up a path for an "anti-Scalia," as Adler puts it — a strongly liberal stalwart who pushes the Court left for decades. 

The Hill reports that Senate Judiciary Chair Chuck Grassley is mum on whether Republicans will even hold a hearing for Obama's nominee: 

The Republican chairman of the Senate Judiciary Committee says he hasn't made a decision about whether to hold a confirmation hearing for President Obama's Supreme Court nominee.

“I would wait until the nominee is made before I would make any decisions. ... In other words, take it a step at a time."

Most believe that Obama will nominate a moderate. By far the most common named floated is Sri Srinivasan, who  was recently confirmed to the D.C. Circuit by a 97-0 vote (it would be awkward for Republicans to block him after they so recently unanimously confirmed him to a high-profile seat. He worked for the solicitor general's office for five years under George W. Bush and two years under Obama; he has clerked for two Republican judges, including Sandra Day O'Connor. He is a widely respected judge and if anything might be a disappointing choice for liberals hoping for someone further left. Will Republicans hedge their bets and back him if he's Obama's choice. Nope. They're bound and determined to block any nominee from Obama, and, of course, Srinivasan is still well to the left of someone like Scalia.

Vox has a good run-down of possible choices for Obama to nominate to the seat, made vacant by the death of Justice Antonin Scalia over the weekend.  

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