McConnell won’t let Obama seal his legacy with Scalia’s replacement


Short of nominating a clone of Antonin Scalia, Barack Obama has about as much chance of getting a Supreme Court nominee approved by Senate Republicans as he does of convincing the average GOP voter that his Hawaiian birth certificate is genuine.

Scalia, the demigod of conservative jurisprudence, was discovered dead in his bed at a luxurious guest ranch in Texas on Saturday morning. Responding to the startling news, Senate Majority Leader Mitch McConnell barely paused for a breath between eulogizing Scalia and declaring that Obama is a lame duck who should not waste his time proposing a replacement for the high court titan. The Republican chairman of the Judiciary Committee, Iowa Sen. Charles E. Grassley, weighed in to declare it “standard practice” not to consider Supreme Court nominees in an election year.

Grassley’s comment was erroneous — the Senate unanimously approved President Reagan’s nominee, Anthony M. Kennedy, in the election year of 1988 — but that did not stop other Republicans from latching onto the same bogus talking point. The gaggle of GOP presidential candidates took time out from calling each other liars at their Saturday night debate to join the chorus of Republicans saying it is unthinkable that Obama would get to pick Scalia’s successor.


It is a key duty of the president — any president — to expeditiously fill vacancies on the court when they arise and for the Senate to give the president’s nominee an up-or-down vote. McConnell, however, stated openly at the beginning of this president’s first days in office that his paramount task was to insure that Obama would not get a second term. In that, McConnell proved a failure, so the least he can do for disappointed conservatives is keep Obama from extending his legacy by putting someone on the court who would tip the ideological balance away from the Republican priorities of protecting big corporations, undercutting unions, banning abortions and whittling away at voting rights.

Undeterred, Obama announced his intention to nominate a new justice, even if Republicans want to deny the fact that he is the legally elected president of the United States for another 11 months. It would be dereliction of duty for him to do otherwise, of course, though Obama is not dumb enough to believe McConnell and his caucus can be persuaded to act on any nominee he proposes. Republicans in Congress have repeatedly proven they cannot be shamed into doing the right thing and certainly not when they can use a court vacancy to rally their base in an election year. Obama understands that this is now entirely about political gamesmanship, and he has one big play to make that could significantly affect the 2016 election.

Whom will he choose for his nominee? Will he name a strong liberal who would give Democratic partisans something to cheer about as the campaign roars into high gear? That is what many pundits predict and what Republicans have vowed to prevent. In this scenario, the proposed person would be a mere symbolic figure, the embodiment of the ideological choice facing voters in November. One wonders who would be willing to play such a role. Who would want to have his or her good name demolished by a relentless blitz from the right with virtually no chance of actually becoming a Supreme Court justice?

Rather than opting for a choice to please liberal purists, Obama could perform a more nimble feat of political jujitsu by coming up with a nominee so nonpolitical, unobjectionable and fair-minded that the Republicans’ raw partisanship would be thoroughly exposed. Srikanth Srinivasan might be just such a candidate. In 2006, the Senate approved the appointment of Srinivasan as a judge on the U.S. Court of Appeals for the District of Columbia. The vote was 97 to 0. Srinivasan is said to be a non-doctrinaire jurist known for his brilliance and even-handed opinions. Having already given him their OK without dissent for the lower court, how could Republicans possibly object to elevating him to the top ring on the legal ladder?

Well, they could do it easily. After all, McConnell and the Republicans are not looking for fair-mindedness and a good legal mind — the things most Americans probably would consider prime qualifications for a Supreme Court justice. They want nothing less than a new Scalia, someone who will be a reliable partisan for the conservative cause.


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