London The sudden death of arch conservative Supreme Court Justice Antonin Scalia at 79 after 30 years on the Court is one of those rare events that has the potential to be a game changer and unsettle the already turbulent events of the election season. Taking to heart the Latin proverb “De mortuis nil nisi bonum,” roughly translated “of the dead, nothing unless good” or essentially, speak no evil of the dead, I would note that in his passing in the Big Bend country of Texas along the Rio Grande, we share in common a love for the rough, solitary beauty of that part of the country. And, so enough said on that score.
The frequency of tough 5-4 decisions on the United States Supreme Court found shifting power in the swing votes of first retired Justice Sandra Day O’Conner and now Justice Anthony Kennedy with four somewhat dependable liberal votes and four often rigid conservative votes marshaled by Chief Justice Roberts but prodded and poked by Justice Scalia, means that President Obama has the opportunity to at least improve the odds by diluting the presumptive four conservative votes. As the partisan sides quickly harden around this opportunity with Senate Majority Mitch McConnell already asking the President to leave the appointment until a new President is elected, essentially punting until 2017, and Democrats begging for a chance to create a liberal majority, unquestionably the potential for a battle royal looms large. The Republican majority controlled Senate has to confirm or reject any possible nominee, and President Obama has correctly just as quickly indicated that he will fulfill his constitutional responsibility and nominate someone in due course. One analysis indicated that the average time from nomination to confirmation is over 100 days, so there’s more than enough time, though others indicate that it is often hard for a President to get this done in the last year of office even in the best of times, which is obviously not now.
What do I know, but it seems to me this is almost a free shot for the President if he is willing to be realistic, as Hillary Clinton would say, or modest, as progressives will think. Obama doesn’t have to nominate a liberal jurist for all of us and the country to come out ahead on this matter. Virtually, anyone, even a middle-of-the-roader, if one can be found acceptable to all sides, will give us better odds for a fairer vote on the Court than Justice Scalia.
Obama knows that clearly enough. The notion that California Attorney General Kamila Harris or Senator Cory Booker might be nominees is almost preposterous. Neither could be approved. If I were whispering in Obama’s ear I would say, nominate a moderate jurist who is African-American or perhaps even better Hispanic, that offers political risk to rabid opponents in the coming election, but who might be acceptable to Republicans based on reputation and body of work.
Obama doesn’t need to make a half-court shot here or something beyond the arc to put us ahead of where we are. He’s got a free throw if he can make it right from the line in the middle of the court, and we could still come up winners, as long as we remember where we have been more than where we might like to go.