The death of Supreme Court justice Antonin Scalia could see both major parties in the United States stake out maximalist positions.
The Republican majority in the Senate, which would need to confirm anyone President Barack Obama nominates to replace Scalia, has already said it will block his candidates.
That, in turn, gives Obama the freedom to nominate someone for political gain.
The Republicans argue that it would be unbecoming of the Democrat to make another lifetime appointment to the high court when the election to replace him is due in November.
But Obama will still be president for almost a year and has a constitutional prerogative and obligation not to leave the Supreme Court undermanned.
With only eight justices, the court cannot make decisions if it is deadlocked. And deadlocked it will almost certainly be in some cases with four of the remaining justices leaning left and the other four leaning right.
Scalia was one of the court’s most conservative members.
Republicans are obviously hoping to win back the presidency in November so one of their own can make Scalia’s replacement.
Georgetown University professor Jonathan M. Ladd argues at Mischiefs of Faction that Obama’s best strategy is to nominate someone who is highly qualified, but not designed to appeal to Senate Republicans.
“Instead, he could choose a nominee who might increase the Democrats’ chances of winning the fall presidential election,” Ladd writes.
Eye on November
For example, if the Democrats worry that black voter turnout will be lower in November than it was four years ago, Obama could nominate an African American, like former attorney general Eric Holder or Circuit Judge Paul J. Watford, to galvanize the community.
If he wants to force Republicans into blocking an Hispanic candidate, when they lost the 2012 presidential election in part due to low support from Spanish-speaking Americans, Obama could nominate someone like Judge Adalberto Jordan.
Jordan is also from Florida, a critical swing state in presidential elections.
Obama and the Democrats win either way: Republicans eventually relent and the court gets another left-wing justice or (more likely) Republicans seem like obstructionists and lose votes in November.