The courtroom of the U.S. Supreme Court, where former associate justice Antonin Scalia’s chair and the bench in front of his seat are draped in black following his death earlier this month.SUPREME COURT OF THE UNITED STATES/AFP / Getty Images
The choice will be momentous and the impact could last for decades. Both Republicans and Democrats seek a Supreme Court justice with a favourable view of the Constitution on abortion, gun rights, mandatory health care and election funding. The political calculus of how to secure the best chance of seating a preferred candidate depends not only on partisan gamesmanship but is also a coldly calculated gamble on the outcome of November's election, where Republicans hold seats in several traditionally blue, or Democratic states.
The best possible outcome for either party is winning the presidency and controlling the Senate, and both sides are jockeying for advantage.
President Barack Obama says he will send an eminently qualified nominee to the Senate – in effect daring the Republican majority to risk the political costs of rejecting, or just refusing to consider, a jurist.
The Republicans are telling the President not to bother. That no matter who he nominates, they don't plan to "advise or consent" until after the next president is inaugurated.
Washington, naturally, is abuzz with scenarios. One long shot would have Mr. Obama nominate Sri Srinivasan, a brilliant jurist with a rare track record of working on high-profile cases on both sides of the partisan divide.
Born in India, a Stanford Law School graduate, he was law clerk to former Supreme Court justice Sandra Day O'Connor, a Ronald Reagan appointee who was regarded as a moderate conservative and the swing vote in several key cases. He worked in the Justice Department under both George W. Bush and Mr. Obama; in private practice, he defended ExxonMobil against accusations of torture in Indonesia and former Enron chief executive Jeffrey Skilling.
But Judge Srinivasan also fought affirmative-action cases and was part of Al Gore's losing team in the 2000 election case. Mr. Obama nominated him, in 2013, to the D.C. Circuit, the second-highest court in the country. The Senate confirmed him 97-0, the only Obama high-court nominee to ever win complete bipartisan backing.
Should the President nominate Judge Srinivasan, who tuned 49 on Tuesday, Republicans might be hard-pressed to explain why they were rejecting him after unanimously confirming him less than three years ago.
But judges know the pitfalls of Washington politics and that they only get one shot as a Supreme Court nominee. Judge Srinivasan might not want to be a pawn in Mr. Obama's high-risk gambit to try to get a rare, third, nominee to the Supreme Court.
Rumours abound. One says Mr. Obama is considering nominating a moderate Republican, Nevada Governor Brian Sandoval. But the report may have originated with Mr. Sandoval. In any case, Republican senators said they weren't considering any nominees, no matter who they might be.
Contentious cases
The next Supreme Court nominee can expect to be involved in cases that will have a profound impact on U.S. society, just as Antonin Scalia was in some key cases decided by 5-4 rulings.
Bush v. Gore (Election outcome 2000) Dec. 12, 2000
- Ruled original Florida vote count would stand, confirming George W. Bush won 2000 election. Subsequent recount confirmed Mr. Bush had won Florida.
- Majority: Rehnquist, Scalia, Thomas, O’Connor, Kennedy
- Dissent: Breyer, Ginsburg, Souter, Stevens
District of Columbia v. Heller (Second Amendment, right to bear arms) June 26, 2008
- Struck down D.C. handgun ban, affirmed that Second Amendment right to bear arms means individuals can own firearms, not just citizen militias.
- Majority: Roberts, Alito, Kennedy, Scalia, Thomas
- Dissent: Breyer, Ginsburg, Souter, Stevens
Citizens United v. Federal Election Commission (Election funding) Jan. 21, 2010
- Gave corporate entities and lobbying groups the right – under the First Amendment – to spend unlimited amounts backing political candidates.
- Majority: Roberts, Alito, Kennedy, Scalia, Thomas
- Dissent: Breyer, Ginsburg, Sotomayor, Stevens
National Federation of Independent Business v. Sebelius (Obamacare) June 28, 2012
- Upheld right of Congress to impose a requirement that everyone must purchase health care (the individual mandate) as constitutional under the taxing authority.
- Majority: Roberts, Breyer, Ginsburg, Kagan, Sotomayor
- Dissent: Alito, Kennedy, Scalia, Thomas
Obergefell v. Hodges (Same-sex marriage) June 26, 2015
- Affirmed right of same-sex couples to marry, ruling it was a fundamental right. Overruled states’ effort to outlaw same-sex marriage.
- Majority: Kennedy, Ginsburg, Breyer, Sotomayor, Kagan
- Dissent: Roberts, Scalia, Thomas, Alito