Gaming the Scalia Seat

Gaming the Scalia Seat

Power Line - Sunday February 14, 2016

by Steven Hayward

(Steven Hayward)

Just curious: is the Senate in recess this weekend? If not, Mitch McConnell might want to have someone rush down to the floor right away to gavel it into session so Obama doesn’t fill Scalia’s seat today or tomorrow with a recess appointment, no doubt citing the grounds that he needs to end-run Republican obstructionism. (I believe President George W. Bush made a couple of recess appointments to appeals courts that were badly undermanned by Democratic obstruction.) Obama could either appoint a hard lefty like Cass Sunstein, or some other sitting Democratic judge, with the thought that the person would be subsequently confirmed if Democrats keep the White House in November.

Here’s a wild thought: Obama could appoint a very old moderate Republican, most of whom have proven in the past to squish out to liberal jurisprudence. An old Republican wouldn’t serve on the Court very long. (Bring back Souter!) This would put Republicans in a tougher spot, or at the very least cause them to develop their very defensible message that we should let the electorate speak on the issue in November. Of course, Democrats would be disappointed with this, but it could be the most cynical and clever move.

Another wild thought, suggested to me yesterday by Fred Siegel: since the balance of the Court is so close and could easily tip right back if a Republican wins in November and Ruth Bader Ginsberg retires, why not strike a compromise whereby Ginsberg retires right now, and Obama and the Republicans each get a pick to replace their side’s justice. This would preserve the existing balance of the Court (see Ross Douthat’s very good column on this point), avoid a deeply divisive fight in an election year, and leave the matter to be fought another day (given that several more retirements and/or deaths are foreseeable in the next four or eight years). Obama takes a high risk that if he can’t get someone confirmed this year and Republicans win in November, a new Republican president could replace both Scalia and Ginsberg.

And here’s the wildest thought: Democrats have a big problem with their presidential field, with two essentially unelectable candidates. How about Obama resigns, and Joe Biden appoints Obama to the Supreme Court? And then President Biden in is ideal position to become the nominee for this cycle. It would solve two problems at once. I’m certain Obama doesn’t want to be on the Supreme Court—he wants to have a massive Clinton-style foundation to enable both his lifestyle and his desire to remain a potent political force—but he might like the political effect of Republicans blocking his confirmation to the Supreme Court, which might help whip up Democratic turnout in November. And as Obama is tired and bored with his job, he might like the opportunity to depart it early and let Joe do it.

  

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