The Case of the U.S. Senate vs. Barack Obama

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Antonin Scalia
A monumental battle is about to begin. / via Flickr user Stephen Masker

Like many liberals, I faced the news that Supreme Court Justice Antonin Scalia had died with mixed emotions, but maybe not for the reasons one would think. There is the purely human response that a person has died, and that person probably had admirers and loved ones who’d mourn the loss. There’s the equally human response that, as a progressive, a man died who’d championed almost everything I find despicable about the educated conservative’s perspective.

But my biggest emotion of all was dread — that President Obama now faces a near-impossible impasse. At first I was able to imagine a scenario in which he’d surely nominate, say, a compassionate moderate, but then the GOP proclaimed — while Scalia’s body was still warm — that they would reject his nominee no matter who it is. The President is a pragmatic fellow; I doubted, given his status as a lame duck and his (welcome) legislation-by-executive-order strategy, that he’d nominate someone who’d face the most contentious kind of fight for confirmation by the U.S. Senate. But maybe now he will do just that.

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I’ve long held the unpopular opinion that all Justices should be moderates. Surely in a nation of more than 300 million people, we can find nine individuals who are qualified and pragmatic, with a learned and reasonable view of Constitutional law. That is an idealist view in a pessimistic society, and I have come to terms with that. What’s a President who has faced Kilimanjaro-esque opposition to every facet of his administration to do? Realistically, he has two options:

  1. Nominate an exceedingly qualified moderate conservative (if they still exist), knowing that he’ll be vilified by the left for such a move, and hope against hope that the Senate exhibits a degree of understanding of why the hell they were elected to office; or
  2. Wait for a break and name someone as a recess appointment, which the President has now said he would not do. He had done so, it would have led to real strife. The charge would have been led by Majority Leader Mitch McConnell, one of the most hateful, petty, small and putrid examples of an elected official ever to hold that distinction (and brothers and sisters, that’s saying something).

[pullquote align=”right” cite=”” link=”” color=”” class=”” size=””]Realistically, Obama has two options.[/pullquote]The right, the “moderate” conservatives (again, if they still exist), and possibly some of those on the left (especially the ungrateful ones who rode Obama’s coattails when it was convenient and abandoned him when it was convenient) will scream bloody murder over either of these. They’ll fight him in the courts (and lose), they’ll smear him relentlessly in the press (shocker), and it’ll quite possibly hurt the Democratic nominee’s chances in the general (a genuine concern). The real question that the President needs to ask himself is which of his options is worth pissing all over his final-year agenda, since it will almost certainly be drowned out by this fight.

A smart observer from either side of the aisle might note that the duty to name a Supreme Court Justice is one of the most vital and sacrosanct of the presidency. Frankly and unfortunately, we don’t live in a time in which smart observers are aplenty, heeded or given a modicum of merit. I don’t envy Obama; the choice before him is genuinely colossal. But we must remember the basic tenet of his ascension to office — that we, the people, elected him twice, because most of the nation entrusts him to make these decisions. May I politely remind the Senate, the GOP, the public and the media that the choice is his.