The
death of Justice Antonin Scalia immediately prompted lofty-sounding
pronouncements from leaders of both parties. But behind the public
statements, the two parties are engaged in raw political calculations
about how to best leverage the vacancy, underscoring the country’s deep
polarization and the reality of how elections are waged nowadays.
Most
strategists in both parties view the appointment process as a prime
opportunity to galvanize their core supporters in the presidential and
congressional elections. With partisan preferences increasingly cemented
in the American public and a declining share of swing voters, elections
are increasingly won through mobilizing party members rather than
trying to persuade independent-minded or skeptical voters. That is why
most politicians are reluctant to do anything that defies or demoralizes
their respective voter bases.
This
fact of political life explains why many Republican senators who face
competitive races this year and are from liberal or moderate states
wasted little time in siding with Senator Mitch McConnell of Kentucky,
the majority leader, in declaring that they would oppose any effort by
President Obama to select Justice Scalia’s successor. It also is why
many Democrats would prefer to see the president nominate someone who
could energize their partisans.
“It
used to be that the focus in campaigns was, How do we win the middle?”
said Glen Bolger, a longtime Republican pollster. “Now it’s, How do we
get more of ours out than they get of theirs out?”
Given that backdrop, here are some possible paths for Mr. Obama to follow, and the likely political consequences of each.
Republicans Pay a Price
The
scenario that the left would most favor and the right most fears would
be the selection of a barrier-breaking nominee who could spur liberal
support and turnout in November. The name most frequently discussed in
this situation is Attorney General Loretta Lynch, who would be the first
black woman to serve on the court. A former United States attorney and
Harvard Law graduate, she drew the votes of 10 Republicans when she was
confirmed as attorney general.
The
combination of her gender and race, her ample qualifications and her
previous support among Republicans would put immense pressure on them to
at least vote on her nomination. Such a selection would also allow Mr.
Obama to hammer at Republicans if they did not approve her, helping the
Democratic presidential nominee and putting Republican senators up for
re-election in moderate or liberal-leaning states with substantial black
populations — such as Mark S. Kirk of Illinois, Rob Portman of Ohio and
Patrick J. Toomey of Pennsylvania — in a political vise.
This
approach could be especially beneficial to Hillary Clinton, if she
emerged as the standard-bearer of a fractured Democratic Party, and help
her energize grass-roots activists who may have favored Senator Bernie
Sanders of Vermont in the primary contest. A nominee who excites the
coalition of young, female and nonwhite voters who lifted both of Mr.
Obama’s White House campaigns could energize Mrs. Clinton’s efforts.
A Safer Choice
The
president could throw a pitch down the middle, nominating someone who
is eminently qualified if not a demographic history maker and who, under
normal circumstances, would be acceptable to a significant bloc of
Republican senators.
A
pool of these potential candidates can be found among the appellate
court judges who were nominated by Mr. Obama or President Bill Clinton
and confirmed with some Republican ayes. Possible choices are Merrick B.
Garland of the United States Court of Appeals for the District of
Columbia Circuit, who was confirmed in 1997 with 32 Republicans voting
in favor, and Jane L. Kelly of the Eighth Circuit, who was confirmed, 96
to 0, in 2013.
Such
a nomination might split the Republicans more than it energizes the
Democrats. Judge Kelly, for instance, is a former Iowa public defender
who drew support in 2013 from her state’s senior Republican senator,
Charles E. Grassley, the chairman of the Senate Judiciary Committee. Mr.
Grassley said on Tuesday that he would not rule out a committee hearing
on Mr. Obama’s nominee, an apparent shift from his earlier statement
that the next president should fill the vacancy. Judge Garland is from
Illinois, the home state of Mr. Kirk. Some Republican senators have a
history of supporting Democratic nominees who are widely regarded as
reasonable choices.
If
Senate Republicans do end up fracturing, with some open to the nominee
and others opposed, the Republican presidential candidates are sure to
react with fury because they are counting on a united and energized
party come November. Conservative voters, in turn, could end up
disheartened if they think Republicans in Washington are giving into Mr.
Obama.
While
such divisions would delight Democrats, their party’s activist wing may
be underwhelmed by a nominee who is an apparent moderate or who does
not make history. The last white man who was nominated to the court by a
Democratic president was Stephen G. Breyer in 1994.
A Dream Candidate for Liberals
If
Mr. Obama wants to protect his legacy on health care, immigration and
other issues, as well as rally Democratic voters in the presidential
election and key Senate races, he could shrug off the idea of
accommodating Republican concerns and instead choose an admired
progressive politician or an established liberal judge.
This
would be tantamount to declaring political war. Yet after more than
seven years of wrestling with Republicans, Mr. Obama may think that he
has little to lose by provoking them, especially if he is reasonably
confident that a Democrat will win the White House in November. He could
choose from among the younger stars in the party, like Kamala D.
Harris, California’s attorney general. He might select a left-leaning
judge like Diane P. Wood of the Court of Appeals for the Seventh Circuit
in Chicago. Or he could opt for the dream candidate of the left:
Senator Elizabeth Warren of Massachusetts.
Some
Democrats believe that the nomination of Ms. Warren, a deeply admired
voice in the party on economic inequality, could be a unifying move
after what is turning out to be a bruising battle between Mrs. Clinton
and Mr. Sanders. Such a nomination could be a balm for liberals and
young people if Mr. Sanders loses the nomination, given that he and Ms.
Warren are strong critics of corporate malfeasance and public
corruption. While Ms. Warren is a Harvard Law School professor, she may
be reluctant to put herself through a nasty confirmation battle, and it
is not clear that Mr. Obama holds her in high regard: He did, after all,
pass up the chance to nominate her to head the Consumer Financial
Protection Bureau.
Still,
the selection of such a strong progressive voice would energize
Democratic and Republican voters because of the possibility of a
five-member liberal majority on the Supreme Court.
Make It Awkward for Republicans
This
may be the most far-fetched choice in an era of polarization, but Mr.
Obama could put Republicans in an awkward position by nominating an
admired Republican figure.
This
may lure a few votes from Republicans while also suggesting that the
president was acting above the partisan political fray. And it could
appeal to those independent voters or moderate Republicans who are tired
of Washington gridlock. Using a court pick to woo voters from the
opposition is not without precedent: President Dwight D. Eisenhower, a
Republican, used a recess appointment
to nominate William J. Brennan Jr., a Roman Catholic Democrat from the
Northeast, in October 1956. (The next month, Eisenhower carried New
Jersey, Brennan’s home state, the next month along with the rest of the
Northeast.)
In
the remote possibility that he decides to go down this path, Mr. Obama
would appear to have two options. He could name an older Republican who
would not serve on the court for long. (Senator Orrin G. Hatch, a former
chairman of the Judiciary Committee and the chamber’s longest-serving
Republican, will turn 82 next month.) Or he could tap a younger
Republican who is politically moderate enough to appeal to Democrats but
would still hem in Republicans. Gov. Brian Sandoval of Nevada supports
abortion rights and, after the court’s same-sex marriage
decision last year, said his state’s arguments “against marriage
equality are no longer defensible.” He is also from a fast-growing and
increasingly diverse swing state, is Hispanic and was state attorney
general and a federal judge before becoming governor.
The Srinivasan Scenario
If
Senate Republicans refused to consider an Indian-American nominee to
the Supreme Court, would they inflame and energize Democratic voters as
much as if they blocked a black or Hispanic nominee? It is a proposition
involving identity politics that the party would like to avoid.
By
a Senate vote of 97 to 0, Srikanth Srinivasan was confirmed in 2013 as a
judge on the Court of Appeals for the District of Columbia Circuit. If
nominated, he would be the first Indian-American in line for the Supreme
Court. Such a landmark choice could inspire Asian-Americans, who are
one of the fastest-growing constituencies in the Democratic Party. But
he would not be a wish-fulfillment candidate for many African-Americans —
a larger part of the Democratic base — the way Ms. Lynch would be.
By
delaying or denying a confirmation hearing for Judge Srinivasan, Senate
leaders would also risk giving ammunition to Democrats who charge that
the Republican Party is hostile to immigrants. Judge Srinivasan, who was
born in India and attended Stanford Law School, has a record of
achievement in the United States that Republican and Democratic
presidential candidates celebrate as an immigrant success story. Some
Democrats say that, just as many Hispanics vote for Democratic
presidential candidates because of their immigration reform plans,
Asian-Americans could be galvanized as a voting bloc if Republicans are
seen as shabbily treating one of their own.
If
Judge Srinivasan is nominated, it could create a complication for one
Republican presidential candidate: Senator Ted Cruz of Texas has said
that the two men were friendly from their days as law clerks in
Richmond, Va., and he credited Judge Srinivasan with doing a “very fine
job” at his 2013 Senate confirmation hearings.
Graphic
Supreme Court Nominees Considered in Election Years Are Usually Confirmed
Since 1900, the Senate has voted on eight Supreme Court
nominees during an election year. Six were confirmed.
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