On Wednesday, it was reported that President Obama is vetting Judge Jane Kelly for the nomination to replace the late Justice Antonin Scalia on the Supreme Court. At first this might seem odd, given that just earlier this week, Senate Majority Leader Mitch McConnell and Senate Judiciary Committee Chair Chuck Grassley went to the White House to reiterate to Obama that they would not consider any nominee he might send to the Senate for this vacancy.
There is, however, good reason to believe that this nomination is another example of Obama putting the GOP leaders in a difficult position because of their obstructionism, as we have observed before (for example, here, here, and here).
Judge Kelly presents a particularly difficult situation for the Senate GOP. She was nominated by Obama in 2013 for a vacancy on the Eighth Circuit Court of Appeals, which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. Grassley is a US senator from Iowa and played a key role in shepherding Kelly through the Senate confirmation process three years ago.
Moreover, it seems he did not have to work that hard, as Kelly was approved unanimously on a voice vote in the Senate Judiciary Committee and then confirmed unanimously by the Senate. Indeed, it only took 83 days for her to go from nomination to confirmation, compared with nearly 300 days for most of Obama's judicial nominees.
So why does Judge Kelly present such a problem for the GOP leadership?
Kelly illustrates a subtle, but important, aspect of the standoff between Obama, McConnell, and Grassley. Namely, Obama is currently in control of how the process plays out next — until he formally forwards a nominee to the Senate, the only moves McConnell and Grassley can make are conciliatory in nature. In other words, McConnell and Grassley have already pushed in all of their chips, and now they have to wait for Obama to see their bet and raise them a nominee.
It's not in Obama's interest to rush into the next stage of the process. By adopting at least the appearance of a methodical search for the best nominee, the president can sit back while the names of potential nominees emerge into public discussion. Kelly is a perfect example: Grassley not only supported her nomination, but he and Kelly are from the same state — the state in which Grassley is currently seeking reelection to a seventh term in the Senate1.
In fact, it might not be in Obama's interest to move to the next stage anytime soon, instead forcing the GOP to fight him on multiple fronts as he releases the names of individuals he's considering, steadily applying more pressure to more senators.
Grassley's "electoral connection" on this issue is already well-established: Kelly was able to be confirmed so quickly because Grassley's support prevented what would have been (most likely) a filibuster by Senate Republicans. During her confirmation hearing, Grassley explained that his support for Kelly's nomination was out of respect for one of her supporters, former Circuit Court Judge David Hansen — and in so explaining, he noted that Hansen had played a key role in Grassley's first election to the Senate in 1980.
From the outside to the inside
If Obama does nominate Kelly, the game inside the Senate is an interesting one. Formally, the nomination will be referred to the Judiciary Committee. At this point, it would essentially be up to Grassley whether or not to hold hearings on Kelly's nomination. Without hearings, her nomination is effectively dead. But the blame for that obstruction would presumably fall squarely on Grassley. In addition to obstructing somebody he supported for a lifetime appointment on the Circuit Court just three years ago, he'd be blocking an Iowan from the Supreme Court ... all in the name of partisanship/electoral benefit. It's hard to draw up a better way to portray an incumbent as out of step with his constituents.
While it's possible Grassley could argue successfully that he is fighting to defend the ability of the American people to express their will in November prior to installing a new Supreme Court justice, that would nonetheless be at odds with the similarly reasonable argument that his constituents have a chance to have one of their own on the Supreme Court.
Simply put, President Obama has the trolling advantage right now. He has the power not only to choose whom to nominate, but also to both time and set the stage for that choice. Through his blanket promise to obstruct a nominee, McConnell is trying to protect his 24 colleagues that are up for reelection this November. The irony of this strategy is that he has now allowed Obama to focus attention squarely on the GOP leadership. That could lead to a very hot summer indeed for Grassley.