Tim Welch, Contributing Writer
“The President shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not otherwise herein provided for,” says the second clause of Article II, section 2 of the United States Constitution.
Recently, Justice Antonin Scalia, who for three decades gave one of the most influential tenures in the history of the Supreme Court, died at the age of 79.
Traditionally speaking, the death or resignation of a sitting member of that court is usually followed by the President nominating a successor to fill the vacancy, and the Senate giving a confirmation hearing to decide whether or not that person is allowed to fill said vacancy.
However, mere hours after Justice Scalia’s death, Senate Majority Leader Mitch McConnell declared, “this vacancy should not be filled until we have a new President.”
The sentiment picked up quickly among GOP members as many voiced similar opinions.
Republican senator and presidential candidate Ted Cruz erroneously proclaimed, “We [the Senate] have 80 years of precedent of not confirming justices in an election year.” In the past 80 years, the Senate has confirmed Frank Murphy (1940), William Brennan (1956), and sitting Justice Anthony Kennedy (1988) all in presidential election years.
In this as with every issue today we see the polarization of American politics, clear as a neon sign in the middle of the night.
Justices of the Supreme Court are given lifetime appointments for the express purpose of freeing them from the ebb and flow of daily political life, allowing them to put on their black robes and examine the day’s docket with a clear legal conscience.
President Obama has said he will name a nominee to fill Justice Scalia’s vacancy, that the Senate will be pressured to give this nominee a fair hearing. We’ll see.
In the interregnum, we can speculate on those whom in the President’s eyes may make a good choice.
First, there is Attorney General Loretta Lynch. A gifted and very well-esteemed legal mind, Lynch previously served as the U.S. Attorney for New York and as a member of the Federal Reserve Bank of New York. She was confirmed Attorney General by the Senate in early 2015 after a very lengthy proceeding.
A former prosecutor who is opposed to the legalization of marijuana, Lynch is not known for being a bleeding-heart liberal, which could sink such an accusation during confirmation hearings.
Moreover, Lynch is a woman and an African-American, two groups the GOP already has trouble selling their brand to, which could galvanize anti-Republican voters come November.
Another choice could be Judge Paul Watford of the Ninth Circuit Court of Appeals. Before his appointment, Watford was an Assistant U.S. Attorney and a lecturer at the University of Southern California’s law school.
He also once clerked for Justice Ruth Bader Ginsburg. Watford is a black man whose outright opposition by the GOP-controlled Senate could also agitate the problem Republicans have with reaching minority voters. A third choice could be Judge Sri Srinivasan of the D.C. Circuit Court of Appeals, home to several former Justices, including the late Scalia.
Born in India, Srinivasan’s family immigrated to the U.S. in the late 1960s. He has lectured at Harvard Law School, defended former Enron executive Jeffrey Skilling, served as Deputy Solicitor General, and was part of the legal team which opposed the Defense of Marriage Act (DOMA) in the landmark gay rights case United States v. Windsor (2013).
All of these potential nominees are ethnic minorities with whom the Republican senators would have a very difficult time tearing down during televised confirmation hearings. Further, all three have previously been confirmed to the offices they currently occupy – with Republican support during their confirmations no less. They are all definitely to the left of Scalia, the Court’s late great conservative; but in all cases, we can reasonably presume that they will not be mere pawns of the outgoing Obama administration.
These are all respected jurists known for being impartial sentinels of the law, qualities which Democrats and Republicans alike should be happy to have in a member of the nation’s highest court.
Photo courtesy of Wyatt Fisher via Creative Commons