I think that President Obama’s nominee to replace Justice Scalia will be dead on arrival at the Senate, regardless of whom Obama selects. I suspect that Obama will reach the same conclusion.
If so, Obama will select the person whose rejection will provide Democrats with the most political ammunition.
Most likely, this means Obama will select an African-American female. That way, when the Senate refuses even to bring the nomination to a vote, the Democratic presidential nominee and Democrats running for Congress can rally African-American voters while also complaining that the GOP is waging war on women.
Political calculation also militates in favor of nominating someone whose leftism isn’t obvious. That way, Republicans won’t easily be able to answer charges of racism and sexism by pointing out that the nominee is “outside the mainstream.”
One way for Obama to accomplish the second objective is to select someone whom the Senate recently confirmed with some Republican support. That way, the Democrats can refute claims that the nominee is deficient.
Logically, the fact that the nominee was confirmed with GOP support tends to undercut claims that Republicans are being racist and sexist. But logic rarely matters in this context.
If Obama views the matter along the lines I’ve just sketched, then he will likely nominate an African-American female whom the Senate confirmed with Republican backing. Loretta Lynch (confirmed with 10 Republican votes including Majority Leader McConnell’s) comes immediately to mind. Research would likely produce additional candidates including, perhaps, some who were confirmed with broader GOP support.
Obama might not follow my thinking all the way to the end. For example, he might nominate an African-American male or maybe an African-American female who hasn’t previously been presented to the Senate but who has little public record to shoot at (a stealth nominee, in other words). Or he might nominate a liberal Democratic Senator respected across party lines (but don’t ask me for a name; I can’t think of any).
I’m fairly confident, however, that Obama’s selection will be driven purely by political calculation.
JOHN adds: I think this is exactly right, which is why I worry about the politics of shelving the nomination. Maybe I’m wrong–those who have gotten themselves elected to the Senate presumably are better judges–but I see the politics of this scenario playing out poorly for the GOP. That is why I am inclined to think that the nominee should be given a hearing in the Senate Judiciary Committee, and then be voted down. The key here is to use the hearing to commit the nominee to a radical position, and the one that springs to mind is the Democrats’ advocacy of the constitutionality of book and movie banning, to which any nominee will be committed.
UPDATE: Here’s black female President Obama might nominate: Ann Claire Williams. She’s a liberal who sits on the Seventh Circuit Court of Appeals. She has been confirmed by the Senate twice, first to the district court (after being nominated by President Reagan) and then, by a unanimous voice vote, to the circuit court (nominated by President Clinton). Moreover, Obama presumably knows Judge Williams from his days in Chicago.
Williams is 66 years old. Normally, this would disqualify her because she isn’t likely to serve liberalism long enough. But remember, the purpose of this nomination (in my view) won’t be to put a Justice on the Court; it will be to gain a political advantage when Republicans block the nominee.
Judge Williams seems well-suited for this purpose.
But Tom Goldstein, who has a great track record when it comes to predicting nominees, thinks Loretta Lynch is the most likely selection.