Hedge Your Bets: A Conservative Case for an Obama-Appointed Scalia Replacement

The Supreme Court has lost its conservative anchor, a respected jurist who will go down as one of the most entertaining and influential legal thinkers of an era. Within minutes of Justice Scalia’s unfortunate passing, the focus shifted from condolences to politics, with quick calls from leading conservatives urging the GOP-controlled senate to not confirm any nominee put forward by President Obama.

I understand the logic – Scalia was a champion of the conservative cause, and President Obama won’t put forward anyone with similar views on the Constitution and role of the Supreme Court, whereas a prospective Republican President could. Additionally, within the climate of political opposition the nation currently endures, an Obama SCOTUS nomination provides an opportunity for the Republican party to flex their Congressional muscle, while proclaiming confidence in the party’s eventual 2016 election nominee.

Still, the race is far from over. And 342 days without a justice, especially as prominent cases move forward, is an unprecedentedly long period of time. While it is true that few Presidents have filled vacancies within their last year in office, fewer (actually one, according to TIME) have faced a vacancy longer than this could be.

Republicans may be willing to let the chair sit empty for that long, especially if the statements of McConnell, Cruz, Rubio, and others are any indication. But conservatives must consider all possible outcomes before taking a firm stand against Obama’s SCOTUS choice(s).

According to the most recent general election polls, Clinton and Sanders lead all Republican candidates, with the exception of Marco Rubio. And while the more electable Rubio may prevail, the most likely matchups heading into South Carolina favor an eventual Democratic presidency.

Currently, President Obama knows that to have a nominee confirmed, he will need to present Congress with a moderate option both parties can reasonably get behind. If Clinton wins the Presidency, she will likely be less inclined to appease Congress with a moderate choice – if Sanders becomes President, who knows who his selection may be.

Even within the Republican party, there would likely be ample disagreement on an eventual candidate. I can only imagine Donald Trump’s proposed solution – “I don’t know who I’ll nominate, but it’s going to be great.” Cruz may be more likely to propose as close to a replacement for Scalia as he can find, while Rubio would presumably opt for a right-leaning moderate of some fashion.

So, assuming President Obama does propose a seemingly amicable candidate, Republicans may be best served turning down the opportunity to flex their muscle and instead, show Americans they can and are willing to get things done, while protecting the balance of the court against a possibly more liberal Clinton/Sanders nominee.

Yet, after coming out so strongly opposed to any Obama nominee, Republicans are unlikely to immediately forsake their opposition, a turn that could be interpreted as weakness. No matter who Obama suggests, I can’t see Republicans backing down on their opposition to a lame-duck nomination.

As such, the President should and very well may plan for his initial nominee to be rejected. Perhaps the President should nominate former RBG clerk Paul Watford or HLS alumna Loretta Lynch, both unlikely to be confirmed by Congress, before turning to the less divisive Sri Srinivasan, who was unanimously confirmed for his judicial post under three years ago.

And if and when he does, perhaps Republicans, having already had an opportunity to make good on their promise to oppose an Obama nominee, will hedge their bets, take the high road, and fill a very significant hole on the nation’s highest bench.