In a different world, when a leading figure in American jurisprudence dies, our initial response would be to take stock of his legacy, both positive and negative, and to remember that he had many friends and family members who will miss him dearly. It would not entail parsing the political ramifications of that person’s passing. But that world does not exist today, and it’s unclear whether that world ever existed outside of David Broder’s imagination. Politics cannot be put on hold, given the Supreme Court’s centrality to American politics, highlighted further by the upcoming presidential election that might decide the balance of power on the Court for decades to come. So let us dispense with the jiggery-pokery and consider possible scenarios for Justice Antonin Scalia’s replacement.
In the most likely scenario, President Obama will nominate a moderately left-of-center person (this guy is getting all kinds of buzz, and deservedly so) and dare the Senate to block the nominee for almost a year. The initial reaction of Senate Republicans indicates their willingness–their glee, really–to accept that dare. A party that breaks with decades of tradition by refusing even to hold courtesy hearings on Obama’s budget will not be deterred by the argument that a year’s worth of dilatory tactics is somehow outside the pale. And the ghosts of Abe Fortas and Lyndon Johnson can testify that when it comes to being the subject of filibustering, the Supreme Court is not out of bounds.
Maybe the calculus will change if the Democratic nominee for president conclusively pulls ahead in the general election race and Democrats show signs of regaining control of the Senate. In that scenario, an Obama nominee might look preferable to whoever might be chosen under unified Democratic control. But if the Republican nominee is even or ahead after the conventions, the GOP will feel that much more secure in waiting until 2017. Since Obama, according to early reports, has already indicated that will be nominating someone, the shadow of the Supreme Court will loom over the general election, and increasingly over the primary election (contrary to what I wrote not even 48 hours ago).
But should Obama decide, in the face of continuing Republican intransigence, to change his strategy from seeking a mutually acceptable nominee to trolling Senate Republicans, there’s really one obvious choice: David Souter. Not only do you get the moderate liberal, but you can also tout him as a Republican who comes with the Bush family seal of approval! And at 76, Souter would be unlikely to hold the seat for a very long time, so a new president could still get a shot to fill the seat. Conservative activists whose nomination strategy can be characterized as “No More Souters” would become apoplectic, but inducing apoplexy is the very point of trolling. I’m not really expecting Obama to undertake this maneuver, but if he can’t break through the anticipated resistance with a more conventional nominee, I’d love to see him try it.