“The President...shall nominate, and by and with the advice and consent of the Senate, shall appoint ...judges of the Supreme Court”
-United States Constitution
Antonin Scalia’s body was barely cold before Republican politicians began angling to prevent President Obama from selecting his successor. Taking the lead, Senate Majority Leader Mitch McConnell said that “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” Ignoring the fact that “out of the last four presidents who served two terms, all of them made nominations to the Court of Appeals (as well as the District Courts) in their last year”, Marco Rubio tried to make the argument that “it's not just for the Supreme Court, even for appellate court, it's been both parties have followed this precedent. There comes a point in the last year of the president, especially in their second term, where you stop nominating, or you stop the advice and consent process." While “the historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election,” Ted Cruz has cited the “long tradition that you don’t do this in an election year.”
As much as McConnell and the rest of the Republicans do not like the reality of the situation, the American people have already elected a President and his name is Barack Obama. Even though he made it his “top political priority,” McConnell was unable “to deny President Obama a second term.” In fact, a Democrat has won the popular vote in five of the past six Presidential elections. Elections have consequences and one of them is the appointment of Supreme Court Justices. Obama not only has the right, he has an obligation to appoint the next member of the Supreme Court. The hard part for the President will be making a selection that forces the obstructionist Senate to take a vote.
While the political press seems to think that Obama best chance for success would be to pick someone who is moderate and “boring,” doing so ignores the history of the President’s previous efforts to be post partisan. Remember, this is the same Republican party that voted against their own plans for economic stimulus and health care reform. No, he has to go big by appointing someone whose refusal for a fair hearing? by Republicans would offend the American people One possibility would be Bill Clinton who could join William Howard Taft as an ex-President who went on to serve on the Supreme Court. Al Gore is a possibility who would also provide a bit of irony considering the fact that the Supreme Court kept him from being President. Appointing Joe Biden might eliminate his regret of not taking a final run for the Presidency.
Another alternative is to nominate someone whom the Republican Senate has already confirmed for another position. Attorney General Loretta Lynch would fit this bill. Any of the judicial nominees who were not filibustered by the Republicans would also make good candidates.
If Obama really wants to go big he could take advantage of the Senate’s work habits and make a recess appointment. This appointment would only last through the end of his term, but would ensure that the Court has a liberal majority for the next few months. Their permanent appointment could then become an issue for the Presidential election. Since the President would be looking to make a statement with the selection of this candidate, it should be someone who plants a flag for the Democratic party. As a spokesperson for the 99%, Elizabeth Warren would be a choice that would energize the base and encourage participation in both the remaining primaries and the November election. She would be the perfect way for a President who ran on hope and change to exercise the mandate given to him by the electorate.