When a Supreme Court justice retires, the administration always says it will replace him or her with the best person for the job. Who’s “best,” of course, depends on a lot more than raw talent. There’s also race, ideology, religion, and the nominee’s command of Perry Mason trivia.
Sometimes, though, what matters most is how hard the administration feels like fighting. This being an election year, the difficulty of pushing a nominee through the Senate confirmation hearings—a soul-deadening process at best, party-destroying at worst—may be a bigger factor than usual. Here, then, is a reverse-engineered look at the kinds of fights Obama may have to choose from—and, in each case, some nominees he might pick to get there.
The Free Pass. Sometimes, the opposition barely puts up a fight. Think Justice John Roberts, who won 78 votes (not including then-Sen. Obama’s) in the Senate in 2005: Sterling credentials, affable demeanor, and hard to pin down with “how would you rule if …” questions. The most likely candidate for such a love fest is Merrick Garland, a judge on the U.S. Court of Appeals for the D.C. Circuit. Garland is considered the most moderate of the names being floated—he’s got a centrist record on the D.C. court and is reportedly close with Roberts, his former colleague there—and thus the one with the best shot of being confirmed. He obviously wouldn’t be a Republican president’s first choice, but senators in the GOP figure that under a Democratic administration, he’s the best they’re going to get.
The Fake Fight. This is when the opposition knows it can’t win—and may not even really want to—but needs to put on a show so as not to look completely spineless. This round’s likely pick: Solicitor General and former Harvard Law School dean Elena Kagan. Kagan is liberal, but won over conservatives during her tenure at Harvard by hiring Bush administration lawyers John Manning and Jack Goldsmith and reaching out to conservative student groups. Kagan also has the advantage of not being a judge and therefore having no paper trail of controversial decisions. On the other hand, her lack of courtroom experience became an issue during her nomination hearing for solicitor general in March 2009. She was confirmed, with 31 Republicans voting against her. If she passed then, of course, she would probably pass now.
The Substantive Fight. It can be hard to differentiate this category from the previous one. But in general, under this scenario there is real push-back—enough to hurt the party and the nominee but not enough to derail the nomination entirely. Diane Wood, currently a judge on the 7th U.S. Circuit Court of Appeals in Chicago, would face strong opposition, largely for her decisions in controversial abortion cases. If Obama picked a gay nominee, like Stanford law professors Kathleen Sullivan or Pamela Karlan, the debate would inevitably swing toward gay marriage. Neither scenario is ideal for Obama, who would probably rather avoid an election-year summer clogged with hot-button social issues. Hillary Clinton’s name has been floated as well, particularly because senators (and former senators) supposedly encounter less opposition among their own kind. Still, given her pseudo-scandals of the ‘90s and role as a politicizing force, Republicans may find it hard to turn away from a fight against Clinton.
The Battle Royale. A president will occasionally nominate someone so divisive that the opposition decides to stake its reputation on blocking him. This hasn’t happened since the twin debacles of the Robert Bork hearings in 1987 and the confrontational Clarence Thomas hearings in 1991. But liberal groups are urging Obama to nominate a true liberal to counter the court’s rightward trend. Harold Koh, the State Department lawyer who was confirmed last summer after a long delay, would flare conservative nostrils with his stance on gay rights, while Chicago law professor and current regulatory czar Cass Sunstein has taken numerous out-there stances in his academic work. Homeland Security Secretary Janet Napolitano would get shredded for her comment that “the system worked” in the wake of the underwear bomber case. Meanwhile, the politics of great legal minds like Bryan A. Stevenson or Elizabeth Warren are probably too progressive to avoid all-out war.
The Wild Card. Some candidates are so unconventional that it’s impossible to say how their nominations would play—which could be a strategy in and of itself. Michigan Gov. Jennifer Granholm would be criticized for her role in the bailouts, but she has a governing background that no other justice does. Interior Secretary and former Colorado Attorney General and Sen. Ken Salazar would have many allies in the Senate, but who knows what people think of him as a legal mind. What about Eric Holder? Or Bill Clinton? Or Cory Booker? The list goes on, at least until Obama puts us out of our speculative misery.