One might think that, in deciding whom to nominate to the Supreme Court, the President -- any President -- would first consider such things as learning in the law, demonstrated devotion to the Constitution, intellectual heft, fair-mindedness, willingness to listen (one of the key and under-rated qualities of judging), modesty, non-partisanship (as, say, between the defense and the prosecution) and breadth of experience.
One might think, yes, but one would be wrong.
I got the wake-up call as to what the libertarian-leaning Left is actually thinking here, where the ever-insightful Prof. Doug Berman discusses three potential women nominees -- Judge Jane Kelly, Judge Jacqueline Nguyen, and Attorney General Loretta Lynch. It had not previously occurred to me that a person's anatomy, anymore than his skin color, was relevant to a Justice's task of doing what the law requires. But I am behind the times.
As Doug explains (to a commenter named "Daniel"):
The main point of nominating a woman, Daniel, is political: Dems always want and need women, especially young women, to be motivated to come out and vote for them. This is one big reason why we often hear "war on women" talk around election time. If Obama nominates a woman, every female Dem plays up claims of gender bias if/when the male-dominated GOP Prez candidates and GOP-male-dominated Senate seeks to prevent even a vote. In addition, at least a few of the six female GOP senators are considered relatively moderate and may feel particular disinclination to vote against an impressive female nominee.
Another possible benefit of a female appointment would be to free up a future Prez not to be quite so concerned about gender issues when replacing Justice Ginsburg in coming years. But this seems a much less significant concern than the short-term political one.
Slightly before Doug explained how the President could be driven by politics, and gender politics in particular, my longtime friend Paul Mirengoff laid it all out:
I think that President Obama's nominee to replace Justice Scalia will be dead on arrival at the Senate, regardless of whom Obama selects. I suspect that Obama will reach the same conclusion.
If so, Obama will select the person whose rejection will provide Democrats with the most political ammunition.
Most likely, this means Obama will select an African-American female. That way, when the Senate refuses even to bring the nomination to a vote, the Democratic presidential nominee and Democrats running for Congress can rally African-American voters while also complaining that the GOP is waging war on women.
Political calculation also militates in favor of nominating someone whose leftism isn't obvious. That way, Republicans won't easily be able to answer charges of racism and sexism by pointing out that the nominee is "outside the mainstream."
One way for Obama to accomplish the second objective is to select someone whom the Senate recently confirmed with some Republican support. That way, the Democrats can refute claims that the nominee is deficient.
Logically, the fact that the nominee was confirmed with GOP support tends to undercut claims that Republicans are being racist and sexist. But logic rarely matters in this context.
If Obama views the matter along the lines I've just sketched, then he will likely nominate an African-American female whom the Senate confirmed with Republican backing. Loretta Lynch (confirmed with 10 Republican votes including Majority Leader McConnell's) comes immediately to mind. Research would likely produce additional candidates including, perhaps, some who were confirmed with broader GOP support.
Obama might not follow my thinking all the way to the end. For example, he might nominate an African-American male or maybe an African-American female who hasn't previously been presented to the Senate but who has little public record to shoot at (a stealth nominee, in other words). Or he might nominate a liberal Democratic Senator respected across party lines (but don't ask me for a name; I can't think of any).
I'm fairly confident, however, that Obama's selection will be driven purely by political calculation.The nation can be grateful that President Reagan selected his first Supreme Court appointee based on the qualities I outlined in the first paragraph of this post, not the ones President Obama's political calculations force me to discuss in the remainder.
Obama's nomination must "be driven purely by political calculation" if, as Mirengoff states, Obama knows that any nominee would be "dead on arrival at the Senate."
What's Obama to do under these circumstances -- circumstances that the GOP foolishly created by stating there will be no hearing before Obama put forth a nomination.
It looks like Grassley at least is backing away from the McConnell-Cruz rhetoric. At least he has stated that he has not ruled out a hearing. I suspect more level-headed republicans will move away from the McConnell-Cruz "principled" stance.
Since you have said a chipper "so be it" to the prospect of the Court's moving significantly to the left, it's hardly a surprise that you're continuing to take the Obama/New York Times/New Republic stance on things.
Not surprising, but tiresome.
Still, I guess it's new that you endorse the President's naming a nominee, not based on the neutral qualifications I listed (although you don't dispute them, either), but on the same political grounds you deign so unworthy in Republicans.
No partisanship there, however!
Bill,
Respectfully, you have a penchant of putting people into boxes (political and otherwise) when they point out (or state) things that you don't agree with.
IMHO, it is not consistent with your depth of knowledge on many subjects to engage in this type of pseudo character assassination.
A simple "we can agree to disagree" would have sufficed.
But this is your stage. So I should shut up.
Paul
paul --
1. I did not put you into any "box." You took, and continue to take, a view openly hostile to McConnell's. Any partisan box you're in is one you stepped in to.
2. Pointing out (correctly, which you don't dispute) that you have taken Obama's side in this is not character assassination of any type. It's true, for one thing, and it has nothing to do with character. It concerns the constitutional and political realities of this vacancy, nothing more and nothing less.
3. There is actual information to be explored about this, see my post here: http://www.crimeandconsequences.com/crimblog/2016/02/the-constitution-does-not-requ.html
It is thus not the case that saying, "we can agree to disagree" would have sufficed.
4. This is CJLF's stage, not mine. I am given the opportunity to be a guest contributor, for which I am grateful. Disagreement is completely welcome, yours included, but it tends to spark debate, at least from me.
I am of the view that informed debate is a healthy thing. In that, I think, we can agree to agree.
If an important GOP official, Bill, had in the past described a particular person as having the qualities you list in the lead paragraph, would you say the Senate should give that person a hearing if/when nominated by the Prez?
An important GOP official like, ummm, Gov. George Ryan? Bernie Kerik? Arlen Specter?
Sorry, I won't be buying a pig in that poke. Indeed, like Sens. McConnell and Grassley, I won't be in the market at all until Jan. 21, 2017. My appetite for bacon might have improved a lot by then.
An important GOP official like Ted Cruz describing Sri Srinavasan. Still no hearing? Hmmm.
Does Ted Cruz support holding hearings now? For Srinavasan or for anyone? I missed that. Could you link the article quoting him?
Bill: How about the current GOP Speaker of the House previously describing an Obama nominee to a lower court as "an amazing person" whose intellect, character, and integrity merits "unequivocal" praise?
I am not trying to get you to buy a "pig in that poke," Bill, but rather test if the language you use to describe how you think Prez Obama should make SCOTUS decisions in your first paragraph ought also to apply to how GOP officials in control of the Senate ought to make SCOTUS decisions.
Doug --
I answered this question today when you posed it slightly differently on another thread. I will repeat my answer:
Let's be clear about what's actually going on with this. Democrats want to start building momentum toward confirming Obama's choice. They know that insistently demanding and then holding hearings is a good way to juice that momentum, to set up the line, "Hey, look, we now know all about this nominee, so let's go ahead with a vote! Delay after such thorough hearings is just obstructionism!"
This is not just about "educating the public" [nor about applying neutral "good government" criteria]. A serious man like you knows that the real job here is to replace Scalia with a liberal in order to change the direction of the law. Everything being said and "suggested" now is in the service of getting that done BEFORE a President Cruz or a President Rubio gets the chance to nominate someone much closer to Scalia's view of law than anyone Obama will pick.
P.S. Neither Ryan -- a fan of mass sentencing reduction -- nor any other member of the House has a say-so over the advise-and-consent function of the Senate.
Nice essay, Bill, but you still have not explained whether you'd apply the criteria you want applied to Prez Obama to GOP Senators.
An "essay" needs to be more than four paragraphs, but whatever.
The fact that you'd like me to participate in the almost-clever agenda to get some anti-Scalia nominee confirmed is not a reason for me to go along.