With Justice Scalia's passing, President Obama has the opportunity to pick another Supreme Court nominee. Any such nominee faces uncertain prospects in the Senate. As we wrote earlier this week, Senate Majority Leader Mitch McConnell faces a strategic dilemma due to competing electoral pressures. In a nutshell, McConnell would prefer to neither vote on, nor obstruct, a Supreme Court nominee before November's elections, as 24 of the 34 Senate seats up for reelection this year are currently held by the GOP.
It's a difficult situation for McConnell and his GOP colleagues, because evidence suggests that most Americans want the Senate to seriously consider an Obama nominee. Below, we turn to President Obama's strategic incentives in this situation.
This isn't the first time
History suggests that Obama can make things very difficult for the Republicans. Not only can he choose to send a nomination to the Senate — which we have argued that McConnell would prefer to avoid — but Obama also gets to choose whom he will nominate: He could nominate a well-known liberal, a well-known conservative, or someone seen as a centrist. The combination of the current ideological composition of the Court and the fractured condition of the GOP's electoral base grants Obama a particularly powerful agenda-setting position, especially relative to the GOP's electoral situation heading into November.
A historical perspective
The Republican Party is in many ways similar right now to the Democratic Party of the mid-20th century. It comprises a precarious coalition of groups with strong preferences that on any given issue could oppose each other. For the Democrats, the tension was between liberal progressives in the North and the Dixiecrats in the South. If we consider Supreme Court nominations and confirmations from that era, we see a distinct pattern of Democrats splitting.
That began in particular with the nomination of Justice John Marshall Harlan II. Harlan's nomination by President Eisenhower in the wake of the Court's decision in Brown v. Board of Education split the Democratic Party, which held 46 of the 96 seats in the Senate (there were also two independents).
That general pattern continued throughout the following 20 years, most notably coming to a head with President Johnson's nomination of Abe Fortas to be elevated from associate justice to chief justice in 1968, prompting a filibuster that was sustained in part by Southern Dixiecrats siding with Republicans.
For the modern Republican Party, the tension is between pro-business, small-government interests and social conservatives. A strategic choice of a nominee by Obama might split these groups, who could never agree on a pro-choice, libertarian judge. Consider, for example, a nominee who opposes regulations on both guns and abortion. Or a judge who opposes campaign finance reform but supports marriage equality. Such a split would further divide the party in the months before the election, especially if it implicates an extended battle over social issues, on which Democrats have a distinct advantage among the electorate.
Putting some chips on the table: thinking about Obama's incentives
So whom should Obama nominate? There have been many takes on this, so we'll focus on the strategic side, rather than on the idiosyncrasies of the possible candidates. To keep it simple, consider three types of nominees: a liberal, a centrist, and a (moderate) conservative. Examples of liberal picks would include Elizabeth Warren, Tom Perez, and Debo Adegbile; centrists would include Sri Srinivasan, Patricia Ann Millett, and Merrick Garland; moderate conservatives would include Jeffrey Sutton, Paul Clement, and Sen. Mike Lee.
The liberal and conservative options are the easiest to prognosticate about, so we'll dispense with them first. We begin with what we see as the option that is least likely and least attractive from Obama's standpoint — nominating a liberal — and then consider the conservative option (which has attracted a lot of attention) before moving to the truly interesting case: the uncertain centrist.
Option 1: Playing to the base
A liberal pick would presumably be blocked by the GOP but might "energize" Democratic voters heading into the 2016 elections, a potential mobilization benefit. The principal risk here for Obama is that he misses an opportunity to actually influence the Court. A secondary, but not trivial, risk is that he passes up the opportunity to paint the GOP senators as unreasonable, as we discussed in our earlier post.
Taking the liberal option requires believing that the "mass mobilization" effect of the nominee outweighs both the policy/legacy incentives from seeing a nominee confirmed and the (Senate and potentially presidential) electoral gains from painting the incumbent GOP senators as obstructionist. First, it is uncertain how much a nominee will actually mobilize voters, and even if it does, political science research (see Flavin and Griffin ) indicates that mobilizing actions by presidents tend to mobilize both allies and opponents. Thus, this route is unlikely to end up being President Obama's best choice.
Another concern on this front, which we note in passing, is that it is unclear why a qualified liberal candidate would accept the nomination — even if President Obama wanted to choose one, he might have a hard time finding a willing taker. With that said, we move on to the case of a moderate conservative nominee.
Option 2: Compromise, but with honor
A moderate conservative would have the best chance of getting confirmed by the GOP given the current makeup of the Senate, but would also represent a bit of a acquiescence by Obama given the possibility of Democratic gains in the Senate this November and the currently very muddy waters of the fight for the Republican presidential nomination.
That said, on Wednesday it was reported that Obama had been considering Brian Sandoval for the vacancy. Sandoval has since taken himself out of consideration, but the important points to note about him (or another candidate like him) is that he is a political centrist, which means that if the Senate were to confirm him, Obama could still argue he has moved the Court to the left. Sandoval supports abortion rights and is not actively opposed to same-sex marriage, but is an opponent of gun control measures. That combination — pro-choice and anti-gun control — might be exactly the kind of poison pill that could rip the GOP apart. While he's not exactly popular with the GOP establishment, he has great credentials, having previously served as a federal judge. (He was nominated by George W. Bush in 2004 and confirmed in a unanimous vote.)
A nominee like Sandoval would have put the GOP in the Senate in a very tricky position. However, it might have been the worst option for President Obama. If Mitch McConnell could have withstood any pressure from his caucus to hold hearings on Sandoval, then the inference the public might have drawn is that McConnell and the GOP really are standing on principle rather than stonewalling on ideological grounds. However, the more moderate members of the Senate GOP would likely have faced a lot of political pressure from their electorates to at least consider Sandoval.
Unlike the liberal option discussed above, this route does have some draw, if only because it represents the highest probability of installing a new justice whose voting will presumably be at least slightly more liberal than was Justice Scalia's. It also has the uncertain possibility of imposing electoral costs on the 24 GOP Senate incumbents who are up for reelection in November.
Also unlike the liberal option above, it forestalls the opportunity for a new president to move the Court in a more appealing ideological direction. This is especially pertinent if the Democratic Party maintains control of the presidency, but it might also be the case for any new Republican president — especially Donald Trump. We'll leave the details by the side for now, but any newly elected president probably arrives with a bit of political capital (particularly with respect to appointing a Supreme Court Justice to a court that, by that point, would have been down one member for around a year or more).
It's also highly unlikely that the GOP is going to have a filibuster-proof 60-seat majority in 2017, so the president, regardless of party, will have to appease both moderate Republicans and moderate Democrats.
Finally, let's turn to the wild card: the "centrist."
Option 3: Centrist ... or wild card?
Given the weaknesses of the liberal and conservative strategies, the Goldilocks principle suggests that the centrist strategy might be "just right." After all, the properly chosen centrist would seem to balance the mobilization, ideology, and policy concerns that are imbalanced under either the liberal or conservative strategy. This is undoubtedly true ... if one can actually find a true centrist nominee.
Our objection is not that there are no true centrist nominees. Rather, it is important to note that centrists are hard to find, almost by definition1. In terms of liberal/conservative ideology, a centrist is defined by what he or she is not. Just like legislators, justices are (essentially) asked to either support or oppose a particular decision. Because of this, a "centrist" with respect to scientific measures like the Martin-Quinn scores is not necessarily an individual who chooses "the middle" (see this recent discussion by David Broockman).
Being centrist definitely could indicate that an individual is a principled centrist and, in a principled fashion, votes liberally on some issues and conservative on others. It can also indicate someone who votes in an uncertain fashion on many, or all, issues. For example, somebody who uses a Magic 8-Ball to choose his or her votes will, in expectation, be coded as a "centrist," when he or she is probably better labeled as a "wild card."
For reasons of space, we do not consider another reason it is "hard to find" true centrists. This reason is based on career motivations of potential nominees. If an apparent centrist were always (or often) chosen by the president, then men and women who want to be Supreme Court justices would, on the margin, have an incentive to hide their true colors and act like centrists until they are on the Court. This argument reinforces the one into which we delve into in more detail in this post.
This uncertainty mitigates the appeal of the balance of the three motivations — mobilization, ideology, and policy — that a centrist nominee appears to present to President Obama. First, Obama is probably uncertain about the true colors/voting tendencies of the centrist candidates. But even if he is not, it is important to realize that, in terms of policy, Obama can fully benefit from appointing a centrist only if a large group of senators also have no uncertainty. After all, he will get the policy benefits only if the Senate confirms the nominee. (Recall the defeat of Harriet Miers, which was largely attributed to GOP senators' uncertainty about whether she was reliably conservative.)
Similarly, a centrist who has judicial experience will have a centrist and, hence, "conflicted/complicated," record of positions on various issues. So even if a senator — regardless of partisanship — is sure about a centrist nominee, how does that senator explain the nominee as a centrist to his or her constituents, especially in the glare of what will be a high-profile vetting and confirmation process?
So what to do — and who to choose?
In the end, and as always when analyzing politics "in real time," there are many details about the motivations and beliefs of individuals such as President Obama, Majority Leader McConnell, and his colleagues in the Senate to which we are not privy. Many of these details involve "higher order" beliefs such as how Obama believes Sens. McConnell and Chuck Grassley (R-IA), chair of the Senate Judiciary Committee, will react to various potential nominees.
That said, our cautious advice would be that President Obama should nominate a moderate conservative to the Court. We say this while acknowledging that there is no perfect — and definitely no certainly perfect — choice. That's simply the nature of the situation.
Nonetheless, while there is some "policy" risk that the Senate might confirm the appointee when a more liberal justice could have been confirmed in 2017, the stonewalling and obstruction that is likely to follow from McConnell and Grassley digging their heels into the sand may obviate that possibility by refusing to confirm the nominee. At the very least, it will make the GOP look fractured and ideologically extreme as they proceed in a haphazard way to ultimately confirming the choice.