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Saturday, February 13, 2016

What's Obama's Best Move?

Scalia is dead. The Republicans control the Senate.  There's an election in 9 months.  Assume Obama's goal is to shove the Court as far to the left as possible, relative to the likely alternatives. What should he do?  I assume the Republicans are going to go wild in the Senate stopping anyone he appoints. We're unlikely to get Justice Elizabeth Warren/Lani Guinier/Erwin Chemerinsky any time soon.  
Here's a slightly crazy idea: is his best move to appoint a moderate or even a soft rightist, but one who is widely respected, in order to either
a) force the Republicans to block someone that'll make them look real stupid, or
b) actually get someone appointed, and hedge against the possibility of whomever a possible Republican president appoints (which could be real scary---the phrase "Justice Roy Moore" is the sort of thing that nightmares are made of, at least if you hold political views like mine---but would Ted Cruz or Donald Trump go that far?  Maybe.)?
In that light, Justice Posner doesn't sound so bad after all (the words turn to ash on my tongue!), compared to some of the possible alternatives.  
(Unless, of course, he just wants to appoint a mild-mannered young constitutional law professor in a swing state. That could work too. Shucks, though, I just can't think of anyone who fits the bill there.)

Posted by Paul Gowder on February 13, 2016 at 06:05 PM in Current Affairs | Permalink


Why not appoint someone interim who can have the job on probation ?

Let the citizens monitor his "good behavior" on the high court.

Then let the election be a referendum on whether to confirm his appointment.

Then decide whether such political acts as the appointment of a Justice should be directly controlled by our democracy.

Posted by: CW | Feb 16, 2016 5:00:35 PM

AnonProf, your rhetoric is silly. Back off the adjectives. You're overheated.

C'mon, Scalia was an important public figure. Commentary on the practical and political effects of his death is perfectly legitimate, even without the socially prescribed wailing and rending of garments. I doubt the man's family spend a lot of time reading prawfs. If they do, Paul's lack of sympathy probably falls pretty low on the list of things that offend them--quite possibly below your equally "shameful," "insensitive," "tacky," and poorly timed endorsement of Gordon Liu as his replacement. (Can't play the game and criticize it at the same time...)

Posted by: Anon E. Muss | Feb 15, 2016 11:51:55 AM

My understanding is that O'Connor was upset she retired when she did, partially because Alito voted differently on key issues. But, don't know about the last few years. For most people, getting back into regular service in their mid-80s (I assume she still occasionally serves on appellate courts like Souter does too) would not be something they'd do.

One out of the box solution would be to agree to a recess appointment and if Clinton/Sanders (well it's a hypo) wins, they would likely re-up them. This would kick the ball down the way. Personally, I wouldn't do it if I was Obama, but it is about as logical as the O'Connor idea.

Posted by: Joe | Feb 14, 2016 6:53:03 PM

I didn't say she'd be there a long time. But I don't know when anybody's going to die, neither do you. And neither does this president or the next one. Let's say Obama appoints her. Now let's say Hillary or Bernie wins and takes the senate with them. Even if O'Connor only hangs on for three years, she hangs on through the midterms, which generally aren't kind to the party in power.

O'Connor enjoying her retirement also doesn't help you argument. Does the country really want a justice who doesn't entirely want to be there?

To sum up, O'Connor doesn't have to stay on the bench thirty years to cause heartburn among the Democrats.

Posted by: YesterdayIKilledAMammoth | Feb 14, 2016 6:15:44 PM

"I doubt O'Connor gets appointed because if the Democrats win the election, the Republicans are going to beg her to keep the seat as long as possible."

She turns 86 next month and seems to have enjoyed her retirement.

Posted by: Asher Steinberg | Feb 14, 2016 4:47:17 PM

I have a suggestion for what Obama could do if he wants to play hardball at http://www.discourse.net/2016/02/how-obama-can-get-a-scotus-nominee-confirmed/ .

Posted by: Michael Froomkin | Feb 14, 2016 3:49:07 PM

Paul, that's excellent to hear. Depending on how this submission season goes, I've got a proposal that I want to shop around, so it's nice to hear others' experiences with specific presses.

Posted by: YesterdayIKilledAMammoth | Feb 14, 2016 2:57:32 PM

I'm sorry, Paul, I didn't mean it as a personal attack -- I only took issue with the narrow focus of your post. But I have made that point and will move on.

Posted by: AnonProf | Feb 14, 2016 1:51:11 PM

Thanks Mammoth, perhaps I am overreacting a little. AnonProf's posts feel like a totally wild personal attack for no visible reason, but the best solution here is probably just not to engage further. Hard to remember when comments arrive over email, directly into one's brain.

And on the happier subject, thanks! Cambridge is absolutely wonderful---I kind of want to send chocolate to my editor (Matt Gallaway, the best editor imaginable) for Valentine's Day. Completely went off without a hitch.

Posted by: Paul Gowder | Feb 14, 2016 12:25:36 PM

Oh, believe me, I know it's ridiculous to think you'd be nominated (or even considered), but I get the impression from your posts that you somehow think it within the realm of possibility. I'll take your word for it that I was mistaken on that point . . .

Posted by: AnonProf | Feb 14, 2016 11:52:55 AM

Gowder, there's no need to be quite so defensive. This is, after all, a blog.

On an unrelated note, good luck with your book. How did you like working with Cambridge? Was the process pretty smooth or more of a gigantic pain?

Posted by: YesterdayIKilledAMammoth | Feb 14, 2016 11:52:42 AM

AnonProf, not a problem. It was also irksome that there wasn't even a disingenuous attempt at condolences. It was, all-in-all, quite an abrasive post.

Posted by: YesterdayIKilledAMammoth | Feb 14, 2016 11:14:47 AM

Mammoth, AnonProf, why are you afraid of the basic acknowledgment of the reality of the situation---that whenever a high political official dies, especially at a time like this, everyone in the world starts political maneuvering? Given that all the politicians were immediately issuing statements about what they'd do within minutes after the story broke, are those of us in the law professioriat/blogosphere supposed to just quietly pretend that the political maneuvering that is already happening isn't going to happen, out of some misguided conception of good taste?

But my favorite remark is the "self-serving" parenthetical. Do you really think that my little joke at the end was an attempt to convince the president of the United States, via a blog post, to nominate me for one of the highest offices in the land? Are you on drugs? To think that my remark at the end was self-serving, you'd have to actually believe that I thought I was a plausible candidate for a Supreme Court appointment. And if you believe that, then you're more nutty than you evidently think I am. Jesus.

Posted by: Paul Gowder | Feb 14, 2016 11:14:18 AM

"I wasn't suggesting Wood as an interim."


Goodwin Liu would be a great pick. Not very likely he would pick someone blocked for in effect being too mean (I'm sorry, showing he is not of judicial temperament) during the Alito nomination, but great. Pamela Karlan too. If we are tossing out nice thoughts.

Realize at 49 he is young, but he was vetted recently and confirmed 97-0 with some nice words from Ted Cruz and Mike Lee. The Republicans would look rather bad blocking a guy like that. Shall see.

Posted by: Joe | Feb 14, 2016 10:27:51 AM

YesterdayIKilledAMammoth, exactly! Thank you for calling Paul on his attempts to recast his original (incredibly insensitive and tacky -- not to mention self-serving ("pick me, President Obama!")) post as something even remotely appropriate.

Posted by: AnonProf | Feb 14, 2016 8:33:40 AM

I wasn't referring to Wood, specifically. I was referring to the interim idea, generally. I doubt O'Connor gets appointed because if the Democrats win the election, the Republicans are going to beg her to keep the seat as long as possible. Thus, Obama has squandered a possible Democratic appointment. And Souter will never make it through a Republican senate. They already feel like he tricked them the first time around. Plus, I think the justices would be concerned about their legacies and "interim associate justice" seems like a deathblow to a legacy. I just don't think a president is going to risk the appointment on somebody keeping their word that they'll step down. I wouldn't.

I think Obama tries to chance the Court. It probably gets beat back, but it'll make great political theater to stir up the Democratic base.

Posted by: YesterdayIKilledAMammoth | Feb 14, 2016 1:24:32 AM

I wasn't suggesting Wood as an interim; I said Obama could either negotiate an interim deal, or nominate someone old enough that Republicans might consider confirming them. They have some real leverage here and I don't see why they'd acquiesce to a 48-year-old, however much they respect him. Either they'll use their leverage to exact the concession of a moderate nominee, or an old one, or they won't confirm anyone, but I can't see them not using their leverage at all. That's just my more-or-less uninformed prediction, though.

The interim idea is a nice idea if (a) the Republicans really refuse to confirm anyone and (b) you can find someone who would definitely quit. A retired Justice like O'Connor or Souter would fit that bill, as they obviously wouldn't care to stay.

Posted by: Asher Steinberg | Feb 13, 2016 11:10:00 PM

The interim justice idea is pretty terrible. Once appointed, there's no way to ensure they will actually step down. Plus, I can't think of a single president who will side-step a chance to change the direction of the Court.

As far as the Gowder & Co. takedown of AnonProf, Gowder's post has nothing to do with political implications. It has to do with political maneuvering. I think that's what got under AnonProf's skin.

Posted by: YesterdayIKilledAMammoth | Feb 13, 2016 10:56:02 PM

Goodwin Liu would be great.

Posted by: AnonProf | Feb 13, 2016 10:16:01 PM

(Judge Srinivasan will be 49 later this month.)

Posted by: Joe | Feb 13, 2016 10:08:29 PM

Judge Diane Wood has a long track record on the 7th Cir. with enough liberal opinions to be a lost cause there. And, she's 65, only a few years older than RBG when she was confirmed. Don't think she would be ideal.

Merrick Garland is 63, which is easier to take than someone 45, and might be bland enough. But, that isn't much of an "interim" choice -- he easily can be there for twenty years.

How about Judge Kozinski?

Posted by: Joe | Feb 13, 2016 10:07:00 PM

^^ Too young to get confirmed in a lame-duck year. Fabulous judge but still a relatively reliable liberal vote in blockbuster cases, and he'd be one for 30-40 years. If Obama wants to actually get someone on the Court, there's my interim idea, there's Merrick Garland, there's Diane Wood, and that's about it.

Posted by: Asher Steinberg | Feb 13, 2016 9:22:27 PM

"Tea Party conservatives such as Sens. Ted Cruz, R-Texas, and Mike Lee, R-Utah, appeared impressed as well. Cruz, who clerked with Srinivasan at the 4th Circuit Court of Appeals, quipped, "I am hopeful that our friendship will not be seen as a strike against you by some."


Posted by: Joe | Feb 13, 2016 9:17:08 PM

Posner would be the third oldest Justice. You'd be replacing one gamble with a different one. In any event I don't think the senate is going to confirm anyone, there's supporters won't care, and undecideds are so dumb/uninformed they won't know anything about the nominee.

Posted by: John | Feb 13, 2016 8:32:13 PM

Given the noises Republican Senators are making about not letting anyone through, I wonder if a possible compromise is an interim Justice who agrees to resign when a new President is inaugurated. The name that immediately comes to mind here is Sandra Day O'Connor. Of course, Republicans might not even agree to that; for one thing, I suspect Texas would lose the big abortion case coming down the pike if that happened.

Posted by: Asher Steinberg | Feb 13, 2016 8:30:20 PM

"Officially-approved-by-AnonProf amount of time." Is that the Thurmond Rule I've been hearing about?

Posted by: Patrick Luff | Feb 13, 2016 7:58:38 PM

Yeah, Paul. I mean jeez.

How dare you post something about the news of the day, especially when that news has potentially massive legal and political implications, and especially when you're a Con Law professor! For shame, Paul.

You should have waited for the officially-approved-by-AnonProf amount of time. And then waited some more, naturally.

(Also, on the substance: Why even bother trying to appease the Republicans in the Senate? They're not interested in governing, and they're going to behave the same way regardless of what Obama does.)

Posted by: Goober | Feb 13, 2016 6:54:19 PM

Because you weren't wondering about the political implications of this massive event with massive political implications, my brave anonymous friend?

Posted by: Paul Gowder | Feb 13, 2016 6:35:18 PM

Scalia is not even in the ground, and you're posting this? In fact, THIS is the first post on this blog where you even mention Scalia's death. Absolutely shameful.

Posted by: AnonProf | Feb 13, 2016 6:30:07 PM

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