The post-Scalia debate

In practical terms, the death of Supreme Court justice Antonin Scalia will not affect the outcomes of cases, except for those that were going to be decided 5-4, with him in the majority. Now those cases will result in a 4-4 tie which means that the lower court opinion will stand. The opinions in those cases already heard but not decided and that justice Scalia was assigned to write the opinion will now have to be re-assigned.

The shock created by the news of the sudden death of Scalia did not last long before people started staking out positions on his replacement. Within a few hours, the Republican party leadership was vowing to not let president Obama fill the seat, saying that the next president should do so. This is absurd, since that means that the vacancy will last until well into the next year, and the court will be short one justice not only for the rest of this term but also for the entire 2016-2017 term.

This could also be a risky strategy for Republicans. At this point, they could agree to discuss with president Obama and see if they could come up with someone who is agreeable to both sides. There is speculation that Sri Srinivasan from the District of Columbia Court of Appeals may be a good compromise choice.

Srinivasan, 48, was born in the northern Indian city of Chandigarh while his father belonged to the southern Indian state of Tamil Nadu. His family migrated to Kansas in the 1960s, where he grew up. He went on to earn degrees from Stanford in college, law school, and business school, the New Yorker said in a report in 2013, citing Srinivasan as “the Obama Administration’s principal deputy solicitor general.”

Srinivasan was also a law clerk to Supreme Court Justice Sandra Day O’Connor, who was a 1981 appointee by Republican President Ronald Reagan and is now retired. After his clerkships, Srinivasan served as a corporate litigator at O’Melveny & Myers and then worked in the office of the U.S. Solicitor General from 2002 to 2007.

Srinivasan, who has served on the U.S. Court of Appeals for the District of Columbia Circuit since May 2013, was confirmed with a 97-0 vote by the Senate three years ago. His appointment to the District Court of Appeals was a part of an effort to sway the court from its conservative penchant, the Washington Post reported, adding that this was the main reason why the Republicans had fought his nomination.

While this will increase the diversity of the court, this still seems a long-shot in the current climate where the Republican base views any compromise as a sell-out. But it may be their best option because if Hillary Clinton or Bernie Sanders becomes president, there is also a chance that Democratic candidates for the senate get elected on their coat tails, giving them a majority in the chamber. Even if it is not a filibuster proof 60 seats, the Democrats can argue that Republican obstructionism requires the use of the ‘nuclear option’ of a simple majority and thus enable them to put an even more liberal voice on the court. And if Donald Trump becomes president, who knows what the hell he will do.

It is unlikely that Obama will be as crassly political as president George H. W. Bush, who used the retirement of Thurgood Marshall, a liberal giant, to nominate an extreme young right wing conservative African American in Clarence Thomas and dare the Democrats to vote against him and risk alienating a core group of supporters. It was a highly cynical move by Bush but it worked. If Obama thinks along those lines, he could nominate someone from a demographic group that the Republicans cannot afford to alienate, except that it is hard to find one that they have not already done so. Women? Check. African American? Check. Hispanic? Check. Immigrants? Check.

The fact that Srinivasan is young may work against him since Republicans may only agree to someone who is quite old and thus will not serve too long. The Asian vote is negligible so obstructing Srinivasan will not be as damaging except in so far as it will reinforce the image of the Republicans being an anti-immigrant, xenophobic party, which may actually appeal to their base. The fact that he was born outside the US to non-American parents may be used against him as not being a ‘true American’. I don’t know what Srinivasan’s religion is but his name suggests that his family at least comes from the Hindu tradition. This may also work against him since the nativists want the Supreme Court to interpret the US Constitution as a Christian-based document, though they are willing to make a pretense of tolerating a Judeo-Christian interpretation as long as it is not too Judeo.


  1. says

    I suspect the smartest political move Obama could make is to nominate a well-qualified black person for the seat. If the Republicans then fail to do anything, it will draw a lot more black voters to the polls. They came out in droves to support Obama, but it is not clear that they will do so for either of the two white Democratic candidates. But with a black Supreme Court Justice on the line . . .

    There is a good list of possible nominees here.

  2. brucegee1962 says

    I think Obama jumped the gun by announcing he’d appoint a replacement. If the Senate Repubs say they’ll run out the clock on any appointment he makes, there’s really nothing to be gained by starting a pointless fight.

    There’s a bigger problem, though: he’s making a big assumption that anyone qualified is even likely to accept the nomination. Why go through all the hassle that goes with having your every word for the past twenty years combed through by the press, when the odds are high that your nomination won’t even come up for a vote? Not to mention that, during the election, you’re going to be a de facto vice-president equivalent to whoever gets the dem nomination, in the sense that your personal character becomes a major campaign issue. That means having to defend yourself from countless Republican efforts to slur your character (which is pretty much a 100% sure bet). Even if the Big Names take the high road, you’ll still have 4000 bloggers accusing you of standing up your prom date, speaking to a Communist once, having a second cousin who is a sex offender, and hating puppies. And even if you make it through all of that, if you’re lucky and a Dem wins, that just means you get all the ?fun? of a Senate hearing, at which there’s a decent chance you’ll be scuttled anyway.

    What sane person would agree to that — as opposed to waiting a year for a chance at an abbreviated version of the same thing?

    I know Obama sees this as his last chance to cement his legacy, but I think the chances are high he ends up with egg on his face.

  3. grendelsfather says

    Obama is constitutionally obligated to nominate a replacement. Whether he ends up with egg on his face (what a strange idiom) is irrelevant. Besides, my inner odds maker tells it 4-1 that egg will end up on the Republicans.

  4. says

    I think Obama jumped the gun by announcing he’d appoint a replacement.

    I think the republicans really really jumped the gun by announcing they would reject an appointment. Whoah. That was bad strategy.

  5. moarscienceplz says

    I sure as heck don’t want yet another Catholic in that seat. They are far too over-represented now, even with Scalia’s death.

  6. Rob says

    If the Senate Repubs say they’ll run out the clock on any appointment he makes, there’s really nothing to be gained by starting a pointless fight.

    If Obama had given up and never taken the Republicans on every time they swore to oppose him he would have done nothing but sit on the sofa and eat peanuts for the last 7 years. C’mon, it’s his job to do his job.

  7. says

    brucegee1962 @2. Um, they vet the candidates in private and make sure they want the post and offer the position before saying anything publicly.

  8. brucegee1962 says

    @7 — Exactly.

    I’m not saying Obama shouldn’t try to run through an appointment, possibly using it to score political points along the way. I’m saying he shouldn’t have announced that he intended to do so until he had a positive confirmation from a thoroughly vetted candidate, one who’d had time to thoroughly think through exactly what his or her odds were, and whether it was worth the brutal attacks sure to come his or her way. If, after that type of preparation, Obama said “I don’t care what Congress says, I have a fine nominee in _______ and I want a confirmation hearing,” he might have come out ahead, whether or not he won. But since he made his announcement — what, 12 hours or less after the death was announced — there wasn’t time for any of that to happen.

    I also should have said that when I believed he might get “egg on his face,” I wasn’t thinking of putting forward a qualified nominee who was defeated. I was thinking of what it would look like if he ran through his short list of nominees and they all said “no.” What does he do then?

  9. soren says

    @8 -- I would think that the Obama administration has a locked drawer somewhere with a shortlist of vetted candidates for the job.

    Scalias death was a surprise, but looking at the make up of the court the odds where pretty good that he would have to make another appointment to the court. If nothing else they would have some of the runner ups from the Kagan nomination on hand.

  10. Holms says

    I think Obama jumped the gun by announcing he’d appoint a replacement. If the Senate Repubs say they’ll run out the clock on any appointment he makes, there’s really nothing to be gained by starting a pointless fight.

    I put it to you that the Republicans started this particular ‘pointless fight’ when they announced that they would oppose yet another reasonable, official obligation of the sitting president.

  11. Reginald Selkirk says

    brucegee1962 #2: I think Obama jumped the gun by announcing he’d appoint a replacement. If the Senate Repubs say they’ll run out the clock on any appointment he makes, there’s really nothing to be gained by starting a pointless fight.

    I disagree. Watching the Republicans block a well-qualified nominee in a partisan and ideological manner will galvanize the Democratic “get out the vote” effort in a way that waiting around for a year could not.

  12. Hoosier X says

    I don’t think Obama jumped the gun by announcing that he would do what the president is supposed to do when a Supreme Court justice dies.

  13. corwyn says


    there wasn’t time for any of that to happen.

    Because apparently presidents are incapable of advance planning?

  14. lorn says

    I think this goes one of two ways, either Obama nominates someone from within the GOP circle that will cause internal conflict and blow the party apart from the inside; or you swing the other way and go full-on liberal. Contrary to established norms there is no requirement that a nominee has to have a legal background.

    So … wait for it … the bombshell nominee from the right would be Glen Beck, or Rush Limbaugh. From the left, I’d like to see Shirley Chisholm make it but medical science isn’t up to that challenge, yet.

    Alternately Bernie Sanders/ Hillary Clinton, whichever doesn’t make it into the white house. Given the timing of nomination and election I’m not sure how you pull that off without knowing ahead of time, anyone have a TARDIS we can borrow, but I’m sure we can figure something out.

  15. StevoR says

    The Republicans had better be careful what they wish for here.

    If they don’t go with a reasonable candidate for SCOTUS put forward by Obama now (or in the next six months or so) then they may find the like the candidate chosen post election by Bernie Sanders or Hillary Clinton even less.

    Also is it really essential that Congress accepts a POTUSés nomination for SCOTUs or can the PTUS justappoint one even in the recess and in absence of Congress?

    Apparently via facebook :

    February 13 at 5:22pm ·
    Fun fact:

    There is precedent for recess appointments to SCOTUS. Washington and Eisenhower both did it.

    So, yeah.

    I’ve also seen suggestions on fb that Obama -- actually either Barack or Michelle -- could be nominated for SCOTUS too. Tempting to imagine the Republican heads exploding if that happened!

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