After the death of Justice Anthony Scalia, the court sits at four liberals and four conservatives. Obama has the opportunity to swing the balance towards liberal and upset a decades-long right wing philosophy.
Sen. Ted Cruz, and Republican presidential nominee hopeful, said Friday night that Obama should not pick a nominee because he is a lame duck.
“The stakes are too high to allow President Obama, in the waning months of his final term, to make a lifetime appointment that would reshape the Supreme Court for a generation,” Cruz said in an email to supporters.
Senate Democrats urged Obama last week to choose a nominee even as Republicans charge it is uncouth of him. The GOP originally said it prefers to delay until after the November election. They threatened to stall any nominee he chooses.
Now, it appears they want the nominee to be placed on the November ballot. Cruz also said he would fight any effort to deny a voter-approved Supreme Court justice.
In remarks in the Senate Judiciary Committee Thursday, Cornyn addressed Democrat’s opposition to “let America have a voice” in the selection of the next justice.
Cornyn said America is in an unseen state of unrest and that calls for uncommon measures.
“Our friends claim that our position, the humble proposition that the people should choose who makes that selection, is unprecedented,” he said. “But it’s simply not the case. No President has filled a vacancy in an election year with divided government as we have today in well over a century.”
He also charged the Democrats with gamesmanship.
“I can’t help but think, while listening to our colleagues across the aisle, that if flip-flops were an Olympic sport, that there might be some gold medals awarded,” he said.
One-third of all presidents made Supreme Court nominations during their last year in office. Six have done so since 1900, including Ronald Reagan who appointed Anthony Kennedy in 1988.
In 1892, President Benjamin Harrison, a Republican, nominated a Democrat justice as a nod to his successor, Grover Cleveland, the first Democrat elected after the Civil War.
Among Obama’s nominees is an Indian-American who could follow that model. Judge Sri Srinivasan of the Washington D.C. Circuit is a Hindu Indian-American. He served for Ronald Reagan and a series of moderate conservatives. He was born in India but grew up in Kansas.
If selected, he would add religious diversity. His nomination would also be poetic. The first Indian-American justice would replace the first Italian-American justice.
Furthermore when Obama nominated him for the D.C. Circuit in 2013, a Republican-controlled Senate approved him unanimously.
Obama is also considering Merrick Garland, chief judge of the Washington appeals court. President Bill Clinton appointed him in 1997 after he served the Justice Department.
The final candidate being reported by Reuters is Paul Watford, a judge in the Ninth U.S. Circuit Court of Appeals in San Francisco. If confirmed, he would be the nation’s third black justice. He would follow Clarence Thomas, who was appointed in 1991 and Thurgood Marshall, who retired that same year.