I am relishing the politics of this supreme court vacancy. Republicans have gotten out in front and tried to put pressure on Obama not to even make a nomination, framing it as a matter for the electorate (Mitch McConnell: "The American people should have a voice in the selection of their next Supreme Court Justice"). That would of course be ideal for the GOP because the Dems could not therefore charge them with naked partisanship and abdicating their constitutional responsibility--which they would surely do if Obama makes a nomination.
Of course, Obama will make a nomination (and has said so).
we take it as a given that Obama will make a nomination and the GOP
will never allow that selection to join the court, what then is the game
of play? The GOP have already committed part of their strategy by
declaring they plan to block any nominee. They might have played it
differently--being solicitous of the president, claiming to be willing
to approve the "right" nominee, but then assaulting any selection as
egregiously liberal and partisan.
Obama's best move, therefore,
would be in selecting not only a candidate with spectacular
qualifications, but one with no hint of a partisan past and also one who
is near the center judicially. He could drive home this point home by
selecting a judge the Senate has already approved--someone like Paul
Watford (whom Tom Goldstein at SCOTUSblog thinks is a likely pick). He
could further complicate the GOP obstruction by selecting a black or
Latino judge. Given the GOP primaries, this would draw further stark
distinctions between the two parties.
Obviously, the GOP realizes
how bad the PR on this issue can get, which is why they're really
trying to make the very constitutionally-mandated act of nominating
Scalia's replacement look itself like a nakedly partisan act. (As with
so many things, I expect the base will find that persuasive but probably
not too many other folks.) And once Obama makes the nomination, the
Senate's obstruction will then become a separate political issue, and
Dems will spend the final months of the campaign using the obstruction
both to win the presidency as well as a number of open Senate seats
along the way.