With the recent death of Justice Antonin Scalia, a major battle over his replacement seems to be in the offing. The timing could not be less ideal. With Obama in his last few months and both houses controlled by the Republicans, it’s difficult to imagine any bipartisanship in the nomination and confirmation process. Nevertheless, it’s possible that the nomination of a moderate liberal justice might garner enough Republican support to allow Obama to put a Scalia replacement on the bench before his time as president expires. Obama might try another strategy, though.
On the one hand, Obama could try to appease the Judiciary Committee and slide through a non-controversial moderate like Sri Srinivasan. This is a safer bet because it is more likely – though far from guaranteed – that Obama could get this kind of nominee confirmed, thus ensuring a liberal majority on the court. A 5-4 liberal majority in the Supreme Court would help to protect Obama’s legacy and impede Republican efforts to undermine it if they were to win the White House in 2016. This strategy, therefore, is a fairly safe bet.
On the other hand, Obama might try to nominate an extremely liberal candidate that he knows will almost certainly not get approved in order to make the appointment an election issue. This would have two benefits. First, it would help rally the base by making the election not just about the next president but also about the next court. The election would become a referendum not just on Obama, but on liberalism in general. If Obama is confident in his legacy, then he might risk selecting an unconfirmable justice to rally leftist members of the party to turn out and support the Democratic nominee in order to ensure a liberal court majority. Second, this strategy has the added benefit of making the Republicans look intransigent and obstinate, hurting their image and supporting the view that Republicans can’t govern. Things like the government shutdown severely damaged Republicans’ reputations among voters who saw them as more interested in petty politics than ensuring that the government functioned. Similar obstinance on a judicial appointment would allow the Democrats to paint the Republicans as yet again ignoring their responsibilities because of petty partisanship.
It’s unclear which strategy the Obama administration will pursue, but both strategies have their merits. It will be interesting to see how this all plays out.