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Expect Obama To Try To Box In Republicans With His Supreme Court Nominee

President Obama could make a decision soon on whom he wants to replace the late Justice Antonin Scalia.
Mandel Ngan
AFP/Getty Images
President Obama could make a decision soon on whom he wants to replace the late Justice Antonin Scalia.

The White House isn't offering any names of potential nominees to succeed Justice Antonin Scalia, but it is offering a few clues.

"I'd urge you to take a look at the two Supreme Court justices that the president has already nominated and successfully got confirmed to the bench," White House spokesman Eric Schultz told reporters Monday.

He was referring to Sonia Sotomayor, the first Hispanic, and Elena Kagan, just the fourth woman, to serve on the court.

"I'd also urge you to look at the several hundred judges the president has nominated and successfully confirmed to the lower courts," Schultz added.

Those judges include more women (132), more blacks (nine), more Hispanics (35), more Asian-Americans (20) and more gay (11) judges than any prior president.

Senate Republicans are quickly lining up behind Majority Leader Mitch McConnell's plan to block any consideration of Obama's nominee, but the president has generally sent the Senate nominees who could overcome the 60-vote hurdle usually required for high-profile nominations.

An American flag flies at half-staff in front of the U.S. Supreme Court building in honor of Supreme Court Justice Antonin Scalia.
Manuel Balce Ceneta / AP
An American flag flies at half-staff in front of the U.S. Supreme Court building in honor of Supreme Court Justice Antonin Scalia.

Sotomayor was confirmed 68-31, Kagan 63-37. Speculative nominees like D.C. Circuit Judge Sri Srinivasan sailed through 97-0; 9th Circuit Judge Paul Watford, 61-34.

"I'd say the president's judicial nominees are all eminently qualified with a record of excellence and integrity," Schultz said. "The president looks for individuals who have impeccable credentials."

A qualified, diverse judge could tap into identity politics in an election year where Democrats need to boost turnout in their coalition populated by minorities, women and younger voters.

It also underscores how big of a political gamble McConnell is taking this year. He is betting that not only will Republicans hold the Senate, they will win the White House and the GOP will get to name Scalia's successor.

He is also betting that blocking a Supreme Court nominee and allowing a vacancy to linger on the court for a year or more will not repel voters come November. But if Democrats win the White House, the Senate, or both, Republicans may ultimately end up with a Supreme Court nominee who is far more liberal by tossing the Republicans' argument in their faces: The voters have spoken.

For now, the more immediate question may be: Who would even want this nomination? Never before has a president asked a Supreme Court nominee to walk into a political buzz saw quite like this.

Yes, prior nominations have been scuttled, and past nominees have been picked apart by the confirmation process, but it happened after the president tapped them for the court.

Obama is essentially asking someone to knowingly enter into what is likely to be an unprecedented time delay during which their professional and personal lives will be picked over and examined by the media and well-funded political opponents.

And, at the end of it all, their reward is that they may still stand no chance of confirmation after serving as a political punching bag, and with no way to predict the whims of the next president.

In 2005, Martha-Ann Alito broke down in tears and left the Senate Judiciary Committee during tough, but customary, questioning of her husband, Samuel Alito. It highlighted how tough the confirmation process can be on families.

For Alito, his nomination-to-confirmation window was 82 days. Obama says he will announce his nomination soon. If Senate Republicans hold firm and block that nomination, the president is essentially asking the nominee to twist in the political winds for the better part of a year.

Copyright 2020 NPR. To see more, visit https://www.npr.org.

Susan Davis is a congressional correspondent for NPR and a co-host of the NPR Politics Podcast. She has covered Congress, elections, and national politics since 2002 for publications including USA TODAY, The Wall Street Journal, National Journal and Roll Call. She appears regularly on television and radio outlets to discuss congressional and national politics, and she is a contributor on PBS's Washington Week with Robert Costa. She is a graduate of American University in Washington, D.C., and a Philadelphia native.
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