If a nuclear war broke out on January 15, 2017, should President Obama just wait until the next president is inaugurated and let him make the policy decisions that would effect the very nature of the Republic for decades to come?
Of course not, and yet there is a strong movement calling for President Obama to wait until the next president to fill the SCOTUS vacancy left by Justice Scalia’s departure.
Nominating high court and appellate court judges is one of the most lasting policy activities a president can have, often shaping the nation for 2-4 decades after they leave office.
In the history of the Republic, 24 nominations for the SCOTUS have taken place during the last year of the president’s term. George Washington, for example, nominated 4 during his final year in office, with one rejected, one declining to serve, and two confirmed by the Senate. Among the confirmations, Samuel Chase was not without controversy.
Chase had long been a states’ rights advocate, but over time his political views leaned more and more toward Federalism, and he was impeached by the House for a variety of charges including unlawful partisanship from the bench and arbitrary rulings. He was acquitted by the Senate, setting a long-time precedent (no longer in play, it seems) of the legislative branch not threatening to impeach over unfavorable rulings — and there has never since been a SCOTUS member impeached by the house.
In the history of the Republic, 24 nominations for the SCOTUS have taken place during the last year of the president's term.
Reagan was handed three straight failed nominations for the vacant seat trying to set up a conservative court — he needed to present Kennedy as an option to get the SCOTUS up to full membership.
Kennedy was not a popular choice among the conservatives, who were angry that Reagan had not fulfilled his promise of shaping a conservative court. In fact, Kennedy has proven to be a crucial swing vote since.
Kennedy was approved because neither side could really resist his qualifications or his political leanings without taking serious collateral damage in the election year.
As IVN writer Mike Austin points out, Obama could really throw a political wrench in the machinery by nominating a moderate Republican to the SCOTUS, forcing the issue. One of the ‘best’ things about a fractured Congress is the fact that the president is forced to nominate someone who will gain the support of both sides of the aisle.
This isn’t outside of the realm of possibility for Obama. In 2012, Obama nominated Sri Srinivasan to the District of Columbia Appeals Courts, taking heat from his own party for Srinivasan’s work in the Bush administration as well as his anti-union and pro-business positions. In all, Srinivasan was seen as a moderate and won Senate confirmation with a 97-0 vote.
From the Democratic perspective, any nominated justice who is a potential moderate swing vote is better than what they had with Scalia, who almost universally held the conservative position on rulings. From the Republican perspective, they simply cannot fall on the sword of upholding ‘Constitutional duties’ when berating and badgering others for the past 7 years for not doing the same; especially, if Obama nominates Srinivasan to the post, who is now fully vetted and universally accepted.
All of this is political strategy, but the essential thing to remember is that the president is the president until January 20, 2017. In a political climate where showing strength to our enemies is seemingly essential, what could be worse than presenting our top executive as an impotent figure head for the next 8 months?