Filling an empty seat
Erich Jegier | Thursday, February 25, 2016
The death of Supreme Court Justice Antonin Scalia makes a dynamic presidential campaign even more turbulent as President Obama considers his course of action to fill the Court’s new void. Yet with all the uncertainty, this situation has the potential to be heralded as a quintessential example of how the United States’ system of checks and balances can bring moderation to an increasingly polarized political sphere. In a campaign season laden with rhetoric of a broken system of government and candidates who are self-proclaimed anti-establishment, President Obama’s decision on how to maneuver through this unique appointment process could not only affirm the efficacy of American government and legislators, but also restore faith in the system.
Senate Majority Leader Mitch McConnell and Senate Judiciary Chair Chuck Grassley, both Republicans, have followed up on their initial statements regarding Obama’s right to appoint Scalia’s successor. Grassley, after backtracking slightly and saying he would “wait and see,” dug his heels in for the obstructionist cause Monday by quoting a 1992 speech made by then-Senator Joe Biden, in which Biden rejected the hypothetical possibility of President George H.W. Bush making a nomination to the high court should a seat have opened up during his last year in office. On Tuesday, McConnell firmly stated on the Republican-controlled Senate floor that, “in this case, the Senate will withhold [consent],” if presented with a SCOTUS nomination by President Obama. Shortly afterwards on the same day, Republicans on the Senate Judiciary Committee published a letter to McConnell stating their intention to withhold consent on any nominee President Obama submits, a further indication of the GOP’s unwavering position.
With the Court scheduled to rule on several landmark cases in the upcoming year, the GOP’s motivation for initiating this gridlock is obvious. As the jurisprudence of the Court hangs in a delicate balance following the loss of the conservative Scalia, Republicans fear a liberal appointment would strip them of the ideological advantage that they had previously enjoyed on the Court. Democrats, on the other hand, see this as a timely opportunity to finally pull the Court over to the left — an opportunity liberals say was rightfully earned by President Obama’s election in 2008 and reelection in 2012. Despite GOP protests claiming that waiting for the newly elected president to make the appointment would yield a Justice who is more in line with current public interest, Democratic leadership insists that the nation already spoke in the last presidential election cycle, and the presidential responsibility to make Court appointments does not diminish towards the end of a term — an opinion President Obama personally echoes. The president stands firm in his decision to make a nomination, and has already begun reading through files on potential candidates.
The catch for Senate Republicans is the unpredictability of the upcoming election, especially when party nominations are still very much unknown. If they use their majority to vote down a Supreme Court appointment made by Obama in the upcoming months, they risk facing nominations from another Democratic President, possibly even the hyper-liberal, democratic-socialist Bernie Sanders. This defeat for Republicans could even be magnified by the loss of their Senate majority in the 2016 election cycle, a result that would all but guarantee confirmation of a liberal nominee. Furthermore, in an election season with strong emphasis on voter turnout, Republican denial of a good liberal candidate could make the GOP look overly obstructionist and rile up enough distaste among the Democratic base to get a strong liberal showing at the polls come November.
Given the dogged resolve shown so far by both the Senate Judiciary Committee and President Obama, it may be in the GOP’s best interest to hedge its bets and give legitimate consideration to President Obama’s nominee (a course of action that has already found public favor from some divergent Senate Republicans). Likewise, it may be in the best interest of President Obama to nominate a moderate or even slightly left-of-center candidate, knowing Senate Republicans would be hard pressed not to confirm the nomination in an attempt to minimize their potential losses.
With this in mind, Judge Srikanth “Sri” Srinivasan of the D.C. Circuit Court of Appeals seems to be an appealing candidate for Obama’s nomination. He has already been vetted by the Senate and was unanimously confirmed for his current position by a 97-0 vote in 2013. A Srinivasan nomination would be tough for the GOP to pass up — he is a highly qualified, bipartisan candidate, and he has a professional history sympathetic to Republican interests in large corporations and big oil, including representing both ExxonMobil and Enron during his time as corporate litigator for O’Melveny & Myers. He would be the first Asian-American to serve on the Supreme Court, and presidential hopeful Ted Cruz, along with several other Republican Senators, openly praised Srinivasan’s work at the judge’s Court of Appeals confirmation hearing in 2013 (though Cruz, also a current member of the Senate Judiciary Committee, still rejects the idea that Srinivasan should be nominated in a lame-duck session).
For a branch of government intended to give impartial rulings that set precedents lasting indefinitely into the future, the Supreme Court has always been somewhat political. Yet in a country that is increasingly being defined by its partisan divide, it is more crucial now than ever to fill the Supreme Court with judges who are not only smart, capable and distinguished, but who are also rational, unbiased and open-minded. We need a court that is willing and able to deliberate on the bench instead of simply adhering to a politically predictable set of rulings. And we need a full court now, not a year from now, so the upcoming Court decisions set national precedent instead of defaulting to the lower court’s decision, which carries much less weight.
Whether Srinivasan or another moderate to slightly liberal candidate will, in fact, end up being appointed and confirmed is anybody’s guess. Yet if this course of action is indeed taken, it will be a major victory, not for Democrats or Republicans, but for American government and political process. At a time when bipartisan agreement is nearly impossible to find and political gridlock is greater than ever, this Supreme Court appointment presents an opportunity to move in the right direction — something short of cooperation, but at the very least effectively operating within the system of government established by America’s founders, and in doing so, making a decision not for one ideological extreme or the other, but for America and its people as a whole.
The views expressed in this column are those of the author and not necessarily those of The Observer.