Political blogger Jonathan Chait wrote earlier this week that recent Senate filibuster brinksmanship coupled with a GOP takeover of the Senate during the 2014 midterm elections could result in a showdown over a hypothetical Obama nomination to the Supreme Court in 2015 or 2016 -- particularly if the nominee would replace one of the five conservatives. Says Chait:
It may seem implausible that Republicans would simply refuse to allow Obama to appoint any justice to such a vacancy. That is only because things that haven't happened before are hard to imagine. But such a confrontation is not only a logical outcome but the most logical outcome. Voting to flip the Supreme Court would be, if not a political death warrant for a Republican Senator, then certainly taking one's political life into one's own hands.
Chait points out that only five Republican senators voted to confirm Elena Kagan to the Supreme Court and that three of them -- Richard Lugar, Olympia Snowe and Judd Gregg -- are no longer in the Senate. (The other two -- Susan Collins and Lindsey Graham -- are both likely to be re-elected in 2014 and would presumably have some freedom to vote the way they want in 2015 or '16.)
There are too many permutations of what justice would be replaced, how polarizing the nominee would be, how many Republican votes would be required to confirm, etc., to guess how the a situation might play out, but here's a thought that would scramble the Republican calculus of obstructing any nominee:
Nominate Cory Booker.
He has the right academic background: undergrad and graduate degrees from Stanford University, a Rhodes Scholar, and a Yale Law School grad. He has relevant experience: former mayor of Newark, N.J., and a sitting United States senator. He is a Democrat but not a fire-breathing partisan.
He is young enough -- 44 -- to serve 20-plus years on the court. He is popular. Even if New Jersey Republican Gov. Chris Christie appointed a Republican to fill Booker's spot in the Senate, a Democrat would very likely win in the special election in 2016, so nominating him does not run an unreasonable risk to Democrats of losing a Senate seat.
The fact that Booker is a sitting senator makes him difficult to reject in Senate confirmation (which is one of the reasons so many cabinet secretaries come from the Senate). The fact that he is an African-American, up-from-the-bootstraps success story who rescues women from a burning building, shovels snow after blizzards, etc., and is a well-liked political figure would highlight the absolute partisanship of opposing his nomination.
The qualifications argument is awkward. He's not a sitting appeals court judge, but neither was Warren Burger. And neither was Elena Kagan. (And, psst, he's sitting right there!) Booker is an extremely intelligent, extremely charismatic guy who you expect would perform well in confirmation hearings.
If a Republican-controlled Senate held up Booker's nomination to the Supreme Court into 2016, it would become a campaign issue for Republican senators running for re-election in a much tougher political environment (Democratic congressional candidates generally fare better in presidential years than in midterm years) and with many more seats to protect in 2016 than in 2014.
Whether the Senate confirms Booker or not, nominating him would be a win for President Obama, a win for the Democratic presidential candidate, and a win for Cory Booker -- who is certainly going places whether the Supreme Court is one of those places or not.