The legal world was shocked to hear of the sudden passing of Supreme Court justice and conservative intellectual giant, Antonin Scalia. Appointed by Ronald Reagan, Antonin Scalia could always be counted on as one of the “conservative” members of the Court, in addition to promoting his “originalist” interpretation of the constitution.

Supreme Court Building via Jeff Kubina on flickr

After he died, it did not take long for Senate Majority Leader Mitch McConnell to declare that “the American people should have a voice in the selection of their next Supreme Court Justice.” In Washington parlance, this is one of the top republicans in the country declaring that the President will not get a nominee through his Senate.

The political ramifications of the passing of Scalia are huge (there are many controversial cases on the Court’s docket), and this is only amplified by the Senate exerting it’s “consent” powers. However, from President Obama’s perspective (including his views of the court), it would be strategically preferable from a policy sense to avoid nominating someone entirely. Let’s look at the three main reasons.

The Legitimate Justice

Central to the theories of the so-called “living constitution” (of which the president and members of the “liberal” wing of the court subscribe), is that in order for the constitution to remain relevant across time, it was built with the ability to change and adapt to the times. The common example is that when the second amendment was written, we didn’t have fully automatic weapons. Therefore, progressives argue, the founders could not have anticipated the AK-47 and reasonable restrictions on firearms are permissible.

Justice Scalia rejected this idea entirely (full disclosure: as do I), instead preferring to interpret the text literally. However, the president strongly believes in the living constitution theory. If he is true to his principles, then the most accurate reflection of today’s society is the upcoming election. Regardless of the winner of the election, the new President’s election will have been an expression of political will, which translates to judicial legitimacy.

The Best Justice

Suppose for a moment that McConnell is willing to budge on his moratorium. It may or may not be particularly likely (addressed below), but if the Senate will consider a nominee, try to imagine that individual. In any Senate without a single-party supermajority, you need to appeal to some members of the other party. But since the Senate majority belongs in the hands of the opposite party, that nominee will need wide appeal.

Rhetorically, it might be valuable to have a nominee that has no strong political ideology and only considers “the law,” but such a super human probably doesn’t exist. Everyone has opinions. Recognizing that everyone has opinions, as President of the United States, it is preferable that the nominee’s opinions match your own biases. Constitutional issues like gun control, abortion, and campaign finance are important legacy issues for Obama. Any Supreme Court nominee with a chance would, at best, swing on these issues. At worst (for the president), disagree with him.

If the president is committed to seeing the decisions he wants, he should wait on a nominee and campaign for the democratic candidates. This outcome would be the most in-line with the goal of the president.

The Future Justice

Any discussion of the vacancy at the Supreme Court would be deficient if we didn’t at least address the stark reality: it’s pretty unlikely that Obama’s choice of nominee would make it through the Senate. That being said, the president is unlikely to submit a nominee in whom he doesn’t believe.

If the president is serious about this candidate, nominating him or her is the worst possible choice. Should the Senate choose to reject the nominee (again, very likely), that person will never ascend to the Court. In the history of the United States, only one nominee has been rejected, resubmitted, and accepted. That justice was Roger Taney, infamous for the Dred Scott Decision that effectively held that slaves (even if freed) cannot be considered citizens.

Should a President Hillary Clinton choose to resubmit Obama’s failed nominee, the comparison to Justice Taney will likely be made, if only in innuendo. But those whispers would probably be enough to sink the candidate.

I’ve never accused the president of sticking to his convictions and ideas, but if he cares about promoting his vision of the constitution (both the document and interpreters), or has the humanity and respect to not doom a qualified nominee, the president should decline to exercise his power to nominate a replacement for Antonin Scalia.