Obama Should Let the Senate Advise Him on a Replacement for Scalia

John Holbo has an interesting notion: President Obama should take seriously the advise part of advise and consent and give the Senate an informal list of nominees to choose from to replace Antonin Scalia. Maybe they’ll pick two or three off the list, maybe just one. Then Obama transmits his final choice for confirmation hearings.

The basic idea is that this puts Republicans in a pickle. If they flatly reject the entire list, it makes their obstructionism a little too barefaced for an election year where they need votes from more than just their base. But if they give tentative approval beforehand, then it’s harder to pretend afterward that Obama has sent them an obviously radical and unacceptable choice.

I suspect this is the kind of idea that sounds better on a blog than it does in the Oval Office, but it’s still interesting. Partly this is because the best Republican response isn’t quite as obvious as it seems. If someone on the list is genuinely moderate, what do they do? They can bet the ranch on winning the presidency and then abolishing the filibuster, which would allow them to confirm a hardcore conservative in 2017. But if they lose—or if they don’t have guts to abolish the filibuster next January—they’ll almost certainly end up being forced to confirm a more liberal justice nominated by President Sanders or President Clinton. Decisions, decisions.


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