During President Obama’s press conference on Tuesday, there was a funny and forthright moment when the president addressed the type of jurist he intends to nominate to Justice Antonin Scalia’s vacant Supreme Court seat. A reporter asked Obama if his earlier comments in the press conference meant that he was “likely to choose a moderate nominee.” Before the reporter could even finish his question, Obama blurted out, to laughter, “No.” He quickly added: “You shouldn’t assume anything about the qualifications of the nominee other than they’re going to be well-qualified.” The current conventional wisdom is that a so-called moderate nominee would have a better chance of being confirmed and would better reflect what the country should want from President Obama’s next justice than one more strongly aligned with progressive jurisprudence.
Not only do the president’s recent comments indicate that this consideration is not what’s dominating his own thinking, but this sentiment is also misguided. Contrary to conventional wisdom, it will be just as challenging in the hyper-polarized, pre-election climate to see the Senate confirm a moderate nominee as a progressive nominee. It is also important to our country for a president twice elected by a majority of the people to appoint a justice whose legal approach firmly reflects the sentiments behind those majorities. For these reasons, the more fitting move is for Obama to nominate a justice who will serve as a compelling messenger for the vision of his administration long after he leaves the stage. In other words, Obama should pick a “Liberal Scalia”—an immensely qualified, rigorous intellect, who also can serve as a leading proponent of the judicial philosophy President Obama has articulated and that the country has ratified by electing him.
First, on the politics, the chances of success for a progressive nominee at this point are no worse than the chances for a moderate nominee. Senate Republicans are already stating that no nominee will receive consideration, regardless of the nominee. Senate Majority Leader Mitch McConnell said that “this vacancy should not be filled until we have a new president.” Sen. Mike Lee, an influential voice on the Senate Judiciary Committee, said that he does not “see anyone getting confirmed.” It does not make strategic sense to pre-emptively compromise with political forces that are themselves uncompromising.
The Obama Administration has tried the moderate route before with limited success. Obama decided to make David Hamilton his first judicial nominee after taking office in 2009 as an olive branch to Republicans. Hamilton was backed by Richard Lugar, the Republican senator from Hamilton’s home state of Indiana. The head of the Indiana Federalist Society called Hamilton “well within the mainstream.” Every Republican on the Senate Judiciary Committee voted against Hamilton, and he was filibustered by the Republicans anyway (cloture was ultimately successfully invoked and he was confirmed by a 59–39 margin, with Sen. Lugar the only Republican to vote to confirm).
Another factor to consider: To the extent the president has any chance of seeing a nominee confirmed, the factors likely to shape that outcome will be the same whether the nominee is closer to or further from the perceived center. One reason for this: The media loves process stories, and its focus during the nomination process will be on Republicans denying an Obama nominee a vote, rather than on the finer details of that nominee’s jurisprudence. Republicans will thus likely have the difficult task of justifying ruining two Supreme Court terms, rather than having to justify their jurisprudential objections to a specific progressive or moderate nominee. Anyone Obama nominates is going to be exceptionally well-qualified. To the extent that person is initially seen as more progressive than moderate by the media, that view will quickly be overtaken as battle lines are drawn and Republicans demonize and obstruct the pick while progressives rally around him or her.
Republican senators up for re-election before a number of purple electorates will also face real pressure to vote to confirm. They will be tempted to defect from the party line regardless of the nominee, especially given how unpopular their party has become and how voters have reacted to past GOP attempts to obstruct normal processes. Support for the Republican Party has recently been measured at its lowest point in 25 years, and a presidential primary featuring Donald J. Trump and Sen. Ted Cruz—let alone a presidential nominee Trump or Cruz—will only hurt the party’s brand more in these swing races. This will be a critical factor in the minds of the five first-term Republican senators who are up for re-election from states that voted for Obama in 2012. Two more Republican senators face races in states Obama won in 2008, with North Carolina’s Richard Burr facing a potentially close race in a state that nearly swung for Obama again in 2012. In these races, voters are more likely to press candidates on their support for or opposition to the president himself and support or opposition to the GOP’s obstructionist tactics than on the esoteric legal positions of the eventual nominee.
Refusing such candidates won’t just be tough for swing-state senators facing re-election. There are other Republican senators whose past records suggest they might find total obstructionism to be an undesirable precedent for the chamber to set on a Supreme Court nomination. Sen. Lindsey Graham voted for both of President Obama’s past two nominees, Sonia Sotomayor and Elena Kagan. Republican Sen. Lisa Murkowski has voted with Democrats on legal issues in the past, and Sen. John McCain has a history of putting the interests of the institution first.
In addition to electoral factors, it might also be hard for the Republican Senate to campaign against the compelling backgrounds of some of the potential progressive nominees. California Supreme Court Justice Goodwin Liu is the son of immigrants from Taiwan who later became a law professor at the University of California at Berkeley. His time on the bench has been so successful that he has already built strong and surprising relationships with conservative justices on his court, despite the six-month Senate fight that Republicans waged to keep him off the federal bench.
Labor Secretary Tom Perez has spent a career standing up for the rights of the less powerful, and has been confirmed twice by the Senate as both chief of the Department of Justice’s Civil Rights Division and secretary of labor. He would bring professional diversity to the bench, having served in both state and federal executive roles and in two areas at the forefront of national concern—income inequality and racial disparities in the criminal justice system.
Republican senators would also have a hard time arguing against the progressive jurisprudence that is associated with the Obama legal world and supported by a majority of Americans in polling over the years. Judge Pamela Harris of the 4t Circuit and Stanford Law professor Pam Karlan have both been roundly praised as two of the more brilliant legal minds articulating this jurisprudence. As Judge Harris said to the Senate during her confirmation hearings, the Constitution should “evolve” by applying older heroic principles to “new facts or circumstances.” Judge Harris and Karlan have presented this position through their affiliation with the progressive American Constitution Society (an affiliation that largely mirrors the association of Justices Scalia, Clarence Thomas, John Roberts, and Samuel Alito with the conservative Federalist Society).
In addition to the realpolitik questions, there are also majoritarian arguments for President Obama selecting somebody in line with his own progressive ideology. The country that voted for Barack Obama to be its president for eight years clearly supported such an agenda. The president has the power to nominate justices because we want to ensure that the American people have a say in who sits on the court. When the people speak loudly—and in consecutive elections—our system provides that their voice is heard through the court’s jurisprudence. The coalition that twice elected Obama needs its voice to be forcefully represented by the president’s nominees.
In that sense, Justice Scalia was a fitting appointee for the Reagan Revolution. He quickly became the face of the conservative jurisprudence that a twice-elected president supported. For Obama to think of this nomination in similar fashion would not be aggressive so much as it would be faithful to our constitutional architecture. A progressive nominee would potentially do for the next few decades what Justice Scalia has done for the past 30 years: stitch together the landmark accomplishments of the two-term president that nominates him or her and the ethos of our era into a jurisprudential vision on the court.
Part of that vision, which Obama has articulated time and again, is for a court that understands and identifies with the hopes and struggles of ordinary people whose lives are being forever affected by a given decision. Polling has indicated that a majority of Americans want their justices to use Obama’s famous “empathy” standard in helping to decide cases. This means empathy not just in discerning how the law applies in the world, but also in being open-minded in listening to justices on the other side of a given issue.
Nominating a justice in this mold would provide a capstone to President Obama’s legacy. He has enacted a series of transformative legislative accomplishments that the court will interpret and apply for years to come. A bold messenger for the constitutional vision of the Obama era would be only fitting. If it was possible for the American people to elect this president twice, it should be possible to get a nominee for the Supreme Court who will voice this constitutional vision to the public and to the legal community for decades to come.