Should Obama pull a Reagan here?


So Scalia is dead, darn it. And now President Obama has the Constitutional responsibility to nominate a replacement and the Senate has the constitutional responsibility to advise and consent. Shockingly, Republicans are promoting a bonkers notion that Obama should just let the next president make the nomination. Cruz at the debate claimed that it's been eighty years since the Senate's confirmed a Supreme Court nomination during an election year---which will make his next Reagan Cult meeting pretty embarrassing when they remind him about 1988.

I was not a SCOTUS fanboy in 1988, but I imagine that no one suggested Reagan should just wait for the next president to nominate someone. The last Justice who died while still serving on the Court was Rehnquist, and Bush made a nomination and saw it consented upon in, like, a month. But let's pretend the Senate didn't want Reagan to nominate someone before he left.

I don't think that's true, but it's easy to pretend because before the Court voted in Kennedy, they voted down Bork. This is where we get to Obama's opportunity to go full Reagan (although, given what we know now about Reagan's mental state during his waning presidency, if this was anyone's actual plan, it maybe wasn't his).

Obama could this Tuesday nominate a wildly unconsentable candidate like Pam Karlan. She will get eaten up and spat out then run over a few times with an old garbage truck. Then Obama can nominate someone like Sri Srinivasan or Jane Kelly who were, at their previous Senate advise-and-consents, voted in with 97-0 and 96-0, respectively. Maybe it's not putting someone as liberal on the court as Scalia was conservative, but it's likely enough to tip the Court and hard to imagine the Senate being able to call that second nominee unacceptable after beating Obama down publicly the first time.

Anyway. It's an idea.


  1. What if he were to nominate former Utah Chief Justice Christine Durham? That would put Lee and Hatch in the very uncomfortable position of having to explain to the people at home why they wouldn't let a Utah Mormon nominee move forward. And Lee would have to do it during an election year.

    I don't know if she'd be interested (she's 70 now). And I'm not sure we'd know what to expect from her. I imagine she would rule along the center of the divide, but perhaps on the liberal side of that divide (she was apparently on Clinton's list when he nominated RBG to the Court). She seems to favor state rights over federal rights, but she also seems to favor individual rights over state rights. I also think it would be good to pull a non-federal jurist onto SCOTUS to provide a different perspective.

    Regardless, I'd love to watch the Utah senators (and perhaps the Idaho and Arizona ones?) dance around this kind of nomination.

  2. .

    Oh, I like that idea very much.