If Obama Fills Scalia’s Seat <br>With Recess Appointment <br>Who’d Dare a Challenge?
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Will it be a fight or a trap? That’s the choice facing President Obama as he looks for a candidate for what is likely to be his final nomination to the Supreme Court.
Republicans who control the Senate have already signaled their preference and intention to wait until after the presidential election to confirm a nominee. President Obama has said he will go ahead with a nomination anyway.
The decision facing Mr. Obama, then, is whether to go for a fight that would mobilize the Democratic base, or instead choose a candidate who has some distantly plausible chance of getting confirmed, or at least of making Republicans seem unreasonable to independents or swing voters for failing to confirm him.
In the base-rallying category, two candidates that you may not have read much about, but who would definitely do the trick, are Pamela Karlan and Goodwin Liu.
The name of Ms. Karlan, who clerked for Justice Harry Blackmun, surfaced in connection with earlier Supreme Court openings during the Obama administration. A Stanford law professor who is now deputy assistant attorney general for voting rights, she’d be the first openly LGBT member of the court.
Mr. Liu clerked for Justice Ruth Bader Ginsburg. He taught at the University of California, Berkeley. President Obama nominated him to a seat on the Ninth United States Circuit Court of Appeals, but Mr. Liu’s confirmation was blocked by Republicans. Since then, he has been a justice on the Supreme Court of California.
Both Mr. Liu and Ms. Karlan are graduates of Yale Law School. Three other candidates in the “fight” category are worth mentioning. Deval Patrick is a former governor of Massachusetts and Clinton administration Justice Department official. He and President Obama are both Harvard Law School graduates with Chicago ties and with an annual summer dinner date on Martha’s Vineyard.
Preet Bharara is the U.S. attorney for the Southern District of New York and a former aide to Senator Schumer who has attracted adulation in the press for his crusades against corruption in Albany and insider trading on Wall Street. Loretta Lynch, another former federal prosecutor from New York, is now attorney general of the United States. Messrs. Liu and Bharara are Asian-American; Mr. Patrick and Ms. Lynch are black.
In the “trap” category, plenty of commentators have suggestions. George Mason University Law professor David Bernstein, author of “Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law,” suggests nominating Senator Lieberman, who represented the state of Connecticut for four terms.
Mr. Lieberman might win enough support from Republicans and former Senate colleagues to get confirmed, but why would President Obama give a choice spot on the high court to a 74-year-old who campaigned for John McCain in 2008?
Jeffrey Sutton, who sits on the U.S. Court of Appeals for the Sixth Circuit, is another choice who fits squarely into the “trap” category. He is from the presidential election swing state of Ohio, where Senator Rob Portman, a Republican, faces a re-election battle that will help determine whether Republicans retain control of the Senate majority. Mr. Sutton, who clerked for Justice Scalia, was nominated to the bench by George W. Bush but won plaudits from liberals when he ruled in favor of the constitutionality of ObamaCare.
Another name that come up in the “trap” category is Theodore Olson, a former solicitor general of the United States who won liberal admiration for his legal work in favor of gay marriage. Mr. Olson, 75, has been in the news recently representing Apple in its fight with the FBI over government access to the San Bernardino shooter’s smartphone.
Also 75 is Jose Cabranes, who sits on the U.S. Court of Appeals for the Second Circuit. A Clinton appointee, Judge Cabranes is a widely respected judge who would be acceptable to many Republicans.
David Barron, a former Harvard law professor and Justice department official who now sits on the First United States Circuit Court of Appeals, irritated the ACLU and the New York Times editorial board with his legal memos in support of executive power in the war on terror. He clerked for Justice John Paul Stevens. If Republicans opposed his confirmation, President Obama could paint them as extremist and obstructionist.
Vice President Biden, 73, is also occasionally mentioned as a “trap” choice. A former senator, he is well liked by his former colleagues. Like Scalia, he is a Catholic. His support as a senator for federal legislation banning so-called “partial birth” late-term abortions might also bolster his potential for crossover appeal.
Or Mr. Obama could nominate his FBI director, James Comey, a former federal prosecutor, a Republican admired by liberals for resisting some NSA data collection in the Bush administration and by conservatives for his dogged probe of Hillary Clinton’s private email server. He is also a supporter of gay marriage.
Weighing against President Obama’s inclination to appoint any of the so-called “trap” choices is the view that Democrats have a good chances of winning the presidential election in 2016, so they might as well wait until after the election and get a young candidate they really want rather than some tepid moderate or merely acceptable older candidate who happens to be confirmable in this quirky situation.
Republicans have the same view of it — they might win the presidential election, so they also think they’d be better off waiting until next year and then nominating and confirming a red-blooded conservative who will be on the court for years.
The likeliest outcome? President Obama will make a “recess appointment,” moving when Congress is out of session to fill the spot on a temporary basis. Republicans would cry that it is unconstitutional, but they’d have a difficult time getting a court to find that they have the standing to sue to challenge the appointment.
Would a Supreme Court justice sitting as a recess appointee be asked to rule on the constitutionality of his or her own presence of the court? Would a justice in such a situation recuse himself or herself? These are constitutional questions of the sort that will leave a lot of people wishing the late, great, Antonin Scalia were still with us to offer guidance.
Mr. Stoll is editor of FutureOfCapitalism.com.