President Obama now faces a critically important choice as he decides whom to nominate to replace Justice Antonin Scalia. Despite the wishes of Senate Majority Leader Mitch McConnell, who proclaimed mere hours after Scalia’s death was reported that the “vacancy should not be filled until we have a new president,” Obama will certainly make a nomination and invest significant time and effort in pushing for his or her confirmation. No doubt, successfully placing a new justice on the Court will be a tall order. The Republicans hold a solid majority in the Senate and face enormous political pressure from their conservative constituents to preserve an appointment for a future Republican president. As Alec MacGillis recently described, McConnell “felt compelled to get out in front of the base’s ire over the Scalia replacement to avoid a later challenge to his leadership perch.” Now, in an open letter to McConnell, Republicans on the Senate Judiciary Committee have vowed to deny the new nominee so much as a hearing.
Nevertheless, Obama’s choice is consequential. To begin with, there remains a small chance his pick will actually assume a place on the nation’s highest court. But perhaps more importantly given the uphill battle to achieve that result, Obama’s nominee has the potential to secure significant political gain for the Democrats in this highly contentious election year. Republican intransigence is a given, but the unprecedented opposition to any nominee could significantly aid a Democratic presidential nominee this fall and enhance the chances of confirming a liberal nominee in the next administration. Thus, the politics of Obama’s choice dictate a nominee who is objectively unobjectionable and demographically aligned with the Democratic base with an eye to boosting turnout in November. To this end, it is highly likely the nominee will be a circuit court judge confirmed by an overwhelming vote, who holds sterling academic credentials and moderately liberal views, who is without any perceived controversial past, who is young (but not too young), and who is either a woman or a racial minority. Continue reading