POTUS Seeking SCOTUS, Must Love Dogs and Legal Analysis

The Supreme Court is important. Washington insiders and journalists refer to it as SCOTUS, which stands for Supreme Court of the US. This importance is clear to anyone who reads the newspapers or the political blogs or listens to the news or watches the news or even just sits around in sweat pants, blandly existing, bothering no one, and doing the crossword puzzle. It is particularly important in the Political World, a semi-mythical place where battles are fought, prizes won and lost and reason hardly ever carries the day. It is clear that there is now a vacancy among the nine justices that make up the Supreme Court and that the inclinations of the eight remaining justices are such that the court is split in half, half being good guys and half being bad guys, and that the choice and confirmation of a ninth justice is a very big deal. And one that outlasts any particular Presidency since these people serve for life. I suspect they can be impeached for bad behavior but I am not even sure of that.

The current President of the US ("POTUS"), President Obama, would like to pick the next Justice, and he can nominate, since this is a prerogative of the President. But the Senate has to confirm this pick, or not, and even the dullest Republican Senator has noticed that there isn't a lot of time left in P. Obama's tenure. So Senate the leadership has drawn itself up and declared that they won't play; they prefer to wait for the next Pres, hopefully a Republican, to nominate the vacancy filler, in hopes that they'll get someone more ideologically suitable than whoever the current President picks. It's a gamble on the future, but so be it.

However, there is a delicious scenario that could play out like this, if the President were willing. Think of it as Games of Thrones without quite as much bloodshed, luscious costumes or attractive participants.

Obama, sitting by himself in the Oval Office, picks up the phone and has the White House Operator connect him with Mitch McConnell, Senator from Kentucky, and Majority Leader of the Senate. Right, he's a Republican and since the Repubs hold a 54 to 46 majority in the Senate, he gets to be the head guy.

"Hello, Senator McConnell?"

"Yes, this is Senator McConnell. Who's this?"

"Oh, didn't the White House operator tell you? It's me, the President."

"Well, sure, sorry Mr. President, no disrespect meant, I just get a lot of constituent calls and lots of them are crazy and more than a few claim to be the President."

"Man, I know what you mean, you ought to see what shows up here on Twitter. It's a good thing some of these bozos only have 140 characters to work with. Plus they mostly don't know how to spell. We have to have the Secret Service follow up on about one out of twenty."

"Well, sorry to hear that Mr. President, maybe they need more Obamacare, heh, heh."

"Well maybe, but here's why I called you. I think we can work out a deal on this Supreme Court thing."

"Well, really, Mr. President, we discussed that last week when you had us all over to the White House, and I just don't think our guys are in a bargaining mood, and I'm not either. Besides, I don't know that you've got a lot of chips on your side of the table on this one."

"Senator, I surely respect your judgment on this, but think about it this way. Say you all decide to hold off on my nominee, even though we could together come up with someone who you all had already confirmed to a lower court vacancy and who everyone would agree was qualified, moderate, and would add to the court's diversity. But you want to wait.

So you wait, and then the conventions are over and Hilary is nominated and your boy Donald is nominated. Then you have an election, and one of two things happens. If Donald is nominated, and if he wins, both of which I sincerely doubt, who knows what kind of person he sends you? Maybe one of his millionaire buddies who's always wanted to be an Ambassador but is willing to settle. And there's no chance that he'll consult with you, since he won the nomination running against the Republican old guard. And Mitch, my friend, you are many positive things, but you're undeniably a charter member of the Republican Establishment. You and Senator Grassley in particular. So you get an unpredictable president sending you someone that's inappropriate, and you've got little choice but to confirm. Or have a huge intra party fight. Do we really need another Clarence Thomas on the court? Someone who doesn't ask a single question during oral argument for ten years?

And if Trump is the nominee, I can assure you that I will spend every day of my remaining term in office campaigning for Hilary. We will do everything that we can to assure that the African American vote turns out, and that the Hispanic vote turns out and that the old white guy vote turns out, and he gets just swamped. The bad news, I guess from your point of view, is that if Donald gets swamped, your guys who are running on the same ticket get swamped too. You know as well as I do that there will be 24 Republicans running for Senate seats that are up this year, and only ten Dems in contests. Just do the math. It's not pretty, and I must say that I doubt that Cruz, if he beats Donald, will do very much better. He's just a nasty son of a bitch and you know that. And he knows that nobody in the Senate likes him worth a darn, so what are the chances he'll listen to you all, even If some miracle happens and he wins both the nomination and the election?"

"Well, Mr. President, I have heard these arguments before, but we're going to run strong Senate races and we are highly confident that we'll hold the majority in the Senate."

"Oh, Mitch, that's hogwash and you know it. But I'm not calling you to argue those numbers. I think you need to look at this as a handicapper, and see if there's a result that gives you some of what you want and gives me some of what I want. Here's how I look at it: Trump gets nominated and becomes President, you get to deal with a shallow blow hard with God knows what result. Ten percent chance. Cruz gets the nomination and wins the general, you get a vindictive bastard who never has liked you and has scores to settle. Ten percent chance. Trump or Cruz gets the nomination and loses, you lose the Senate and you get to deal with being Minority Leader again, and you remember how wonderful that was. Eighty percent chance.

And here's the clincher. You'll like this. If we can't come to some quick agreement on this, I will make a deal with Hilary that, in return for my strong support and campaigning, she'll nominate someone who will give you guys such heartburn for such a long time, that it will turn out to have been the worst missed opportunity of your career. And guess who that lucky nominee will be: Michelle Obama!"

"Barack, you can't do that, she's not a lawyer!"

"Mitch, Mitch, I thought you knew the constitution better than that! The Constitution doesn't say much about Justices, no age, education, profession, or native-born citizenship rule like there is for President. No way a Justice needs to be a lawyer. You're a student of history, so you probably know that the last Justice who wasn't a lawyer was James F. Byrnes. And he didn't even graduate from high school. Might have been a better justice for all that. Hell of a guy by the way.

Besides, you chowder head, I thought you knew that Michelle went to Princeton, and Harvard Law School and worked at Sidley Austin. That's where I met her. Just look up her resume some time. Some people think she should have been President and not me, but I fired them. Just kidding.

So she gets on the Court, you think she'll vote to overturn what you all insist on calling Obamacare? Or the EPA rules? Yep, right again. I can just see your Senate buddies, who will of course be in the minority, turn apoplectic when President H. Clinton sends up this nomination. And Hilary will do this for me, and mostly because she knows that if Michelle is a Supreme, she won't run for President against Hilary in four years. Hilary has set a kind of a bad precedent here.

So Mitch, you're a gambling man, but you want to take the twenty percent chance, or do the smart thing and see if we can get a deal?"

"You would do that, get your wife on the court, wouldn't you Mr. President? Yes, I believe you would, I believe you would. Let me think on this and call you back."