Newswise — It may anger his fellow Democrats, but in order for President Obama to have a nominee for the Supreme Court to replace the late Associate Justice Antonin Scalia confirmed by a hostile Republican-controlled U.S. Senate before the end of his term, the president may have to nominate a Republican rather than a liberal or moderate Democrat, a Georgia State University political scientist said.
Dan Franklin is an associate professor of political science at Georgia State and is the author of “Pitiful Giants: Presidents in their Final Term” (Palgrave MacMillian, 2014), which examines past U.S. presidents in their final years in office.
Franklin’s contact information is available in the box above for reporters logged into the Newswise system.
“President Obama can appoint a person who is satisfactory to himself and his party – and that person will not be confirmed,” Franklin said. “Indeed, Sen. Mitch McConnell, Republican leader of the Senate, has already announced that no nominee of President Obama will even be considered [until after the end of his term].”
The political scientist said that in his research, he has found that past lame-duck presidents, as they reach the end of their terms, must necessarily bend more to other parties, as he loses his bargaining advantage.
“Thus, the compromise point between the two parties that would normally exist has to be moved farther in the direction of the Senate as the president is destined to leave office at a certain date, and the vast majority of senators are secure in their seats,” Franklin said.
One solution in getting a nominee confirmed could be the nomination of a U.S. senator to the seat held by the late Justice Scalia, he said.
“In trying to get a nominee confirmed, past research has shown that presidents have had a much easier time in getting the confirmation of sitting – or even former – U.S. senators when time is of the essence, and the appointment may be controversial,” he said.
Normally, when the Senate is controlled by one party and the presidency by another, President Obama would be able to have a moderate to conservative Democrat confirmed for the judicial seat.
But in 2016, a nominee from the Senate would most likely need to be a “reasonably” moderate Republican, rather than a moderate to conservative Democrat due to the current political atmosphere, Franklin said.
He said that possible choices could be Sens. Chuck Grassley (Iowa), Thad Cochran (Miss.), Lamar Alexander (Tenn.) or Orrin Hatch (Utah).
“I think it is pretty clear why Senate Republicans would vet and approve one of these choices, but why would the president do this?” Franklin said.
“In replacing Justice Scalia with a reasonably moderate Republican, the president would be shifting the Supreme Court somewhat towards the center,” he said. “that would be true in the partisan sense, but even more importantly in the philosophical sense.
“Justice Scalia was the main proponent on the Court of the philosophy of original intent,” Franklin continued. “Of course it is impossible to know what the Framers thought about microwave bandwidths, the personal possession of assault weapons and other matters.”
“To appoint a justice who is philosophically predisposed to follow the law, even it goes against the president’s wishes, is to restore the Court to its original purpose,” he said. “And, sometimes, just sometimes, as Chief Justice John Roberts has demonstrated, the law forces us to arrive at progressive conclusions.”
And looking at the “long game,” there is another political advantage in the event the Republican nominee wins the presidency in 2016, and the Senate stays under GOP control: President Obama could appoint an individual who is older – age 70 or older -- and whose tenure, realistically speaking, may not be very long.
“I don’t want to be morbid but if this turns out to be a mistake at least it would not persist for decades,” Franklin said. “And, by the way, even if this appointment should surprise and be worse (from the liberal perspective) than expected, the Court is unlikely to be any more conservative than it was before.”
For more information about Franklin, including his research, books and journal articles, visit http://politicalscience.gsu.edu/profile/daniel-p-franklin/.