The case for nominating Elizabeth Warren to the Supreme Court.

The Case for Nominating Elizabeth Warren to the Supreme Court

The Case for Nominating Elizabeth Warren to the Supreme Court

The law, lawyers, and the court.
Feb. 26 2016 5:16 PM

The Case for Nominating Elizabeth Warren to the Supreme Court

The time for temperate, modest, and self-abnegating wonks is next vacancy.

Elizabeth Warren.
Sen. Elizabeth Warren at the Greater Boston Labor Council Labor Day Breakfast, Sept. 7, 2015.

Mandel Ngan/Thinkstock

It’s been almost two weeks now, and the talk of who Obama may appoint to replace Justice Antonin Scalia has already been pushed off the front pages. The White House rather brilliantly trolled the GOP this week with rumors that it was vetting GOP Nevada Gov. Brian Sandoval. Republicans dutifully refused to consider his nomination and scurried back into their dark corners. Sandoval removed his name from consideration. And incensed conservative commenters scolded Obama for playing games, as if they hadn’t been insisting for two weeks that they were going to pick up their football and go home.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

There are a few lessons to be drawn from the Sandoval trial balloon: First, there is no point in Obama picking a conservative or even a so-called “consensus” candidate. Obama pretty clearly couldn’t get a vote if he nominated Eugene Scalia, the former justice’s son—this is the hill Mitch McConnell has chosen to die on. This issue will either remain in the forefront of the national conversation about the 2016 elections, or it will fade away. It’s in Obama’s and the Democrats’ interest to ensure that this unprecedented and wholly unprincipled obstruction remain an election issue every single day.

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This leads us to the second lesson. To the extent that this is a political battle, it is a battle over symbols, not people. The loss of Antonin Scalia—the lion of the Federalist Society and the face of modern conservative jurisprudence—cannot be overstated. Had another conservative member of the Supreme Court passed away, I am not certain you would have heard McConnell insisting immediately that he could not be replaced by this president. For the GOP, losing Scalia was like losing Reagan. The notion that he could be replaced by anyone is still in doubt on the right.

In addition to Justice Scalia, there’s another powerful symbol in this constitutional game of chicken: President Obama. The GOP opposition to even discussing any nominee Obama puts up is just the latest attack on his legitimacy. It calls to mind birtherism and the incessant moves to repeal Obamacare and all the 101 other signals that they not only hate this president, they also don’t accept that he’s the real president.

So that is the setup. To block any Obama nominee, Republicans in the Senate need to convince voters that Justice Scalia is still alive and that President Obama is not human and never has been. It’s a heavy lift.

So what is the president’s best move?

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One possibility is that he could proceed as if this were a normal court vacancy, tap a moderate and well-qualified jurist, and let the opposition unroll. There will likely be no hearings and no vote, but there would also be minimal drama, and Obama can hope that Hillary Clinton would re-nominate whoever he chooses, if she is elected in November.

There’s another completely depressing but increasingly likely option: It now seems clear to me that Obama must play this out in the realm of symbols and not individuals.

Dispiriting as it is, this election fight will not be won or lost with strong, well-qualified, or temperate candidates. And given that any of the wonderful, thoughtful centrist judges (confirmed by the Senate 97–0 and 98–0) on the various shortlists are not symbols, perhaps he needs to rule them out. Beyond that, Obama is going to have a tough time asking sitting federal appeals court judges to more or less destroy their lives and careers for the next 11 months while the world chomps away at their butts and reputations. So, as worthy as some of the brilliant and accomplished short-listers are, let’s agree that they shouldn’t be sacrificed to the obstructionist wood chipper of the Republican-controlled Senate. Nobody who has worked hard to be a respected jurist should have to ruin a life and a career over a political food fight.

Who does that leave? Someone who will mobilize and energize Democrats and inspire centrists and moderates. Someone accustomed to the bright lights of cable news and someone who doesn’t mind being flattened down to an election-year cartoon. There has been a lot of speculation about the ways in which a minority candidate from a group that skews Democratic could help boost election turnout, and that may be a factor in the president’s selection. But Obama’s primary goal here may need to be a different one: to tap someone who is a known quantity, someone who is both well-loved and well-respected.

I’m thinking of big political names: Deval Patrick, Cory Booker, Elizabeth Warren, Loretta Lynch. I’m thinking of huge public reputations that will go undisturbed by a fight in the media: Bryan Stevenson, Steve Bright. Big and splashy and dramatic—the antithesis of an Obama judicial pick. It will spare a really great and tender judge the humiliation of being a political football and perhaps serve to get out the vote in November. This is less a trick than a pivot, a nonconstitutional response to a nonconstitutional impasse.

There is one concern with selecting a well-known politician: It will serve to further politicize a court that is already far too ideologically riven. It will turn the debate over the court into a familiar script about politics rather than a rarefied debate over the Constitution. It’s not really what this president would have liked his judicial legacy to be, and it may ultimately be terrible for the court itself. But these are the new goalposts. If Obama wants to be in the game, the time for temperate, modest, and self-abnegating wonks is next vacancy, not this one. Obama has said he wants a politician on the court. Perhaps the next Justice Warren could even be an Elizabeth.