We’re hearing all sorts of chatter right now about what sort of nominee President Obama should send to the Senate, given the more or less flat rejection of any nominee. I say ‘more or less’ because even those who don’t quite accept McConnell’s flat refusal are I think still intending to vote down any nominee. Should he nominate a super liberal nominee, someone who most helps the 2016 election campaign, a quasi-conservative in the hopes of pulling a few a few Republican senators over? The last suggestion strikes me as silly. But I think most of the speculation is itself beside the point and sort of silly because there are things about Obama himself which I think tell us how this plays out.
Obama is fundamentally an institutionalist, temperamentally conservative and he sees the Court itself as something he has some ownership and purchase on as a lawyer and former law professor. Because of that, I do not think it is at all likely that Obama would nominate someone who he would not have given serious consideration to nominating, if he’d gotten this opportunity in 2015 or 2014. I don’t think it’s in him. It is not in his character to make a nomination which is not someone he doesn’t think belongs on the Court – even if one could possibly justify such a decision because we know the person isn’t going to make it there anyway.
So we’re not going to see him nominate some hyper-liberal and we’re not going to see him nominate some quasi-Republican just to put a squeeze on some vulnerable Republican senators up for reelection. Not going to happen. Again, we know Obama pretty well at this point.
Now, I’m not saying he’s immune or above the strategy and the politics. They’ll play some role. But I would be very surprised if he does not nominate one of the handful-plus of respected judges or very high level constitutional lawyers – on the broadly liberal/progressive side of contemporary jurisprudence – who have all the educational and professional pedigree that has become the norm for Supreme Court nominees.