Will she or won't she?

Supreme Court Solution: A Senior Citizen

Jonathan Bernstein is a Bloomberg View columnist. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.
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With the new Republican-majority Senate, we expect severe conflict if a Supreme Court vacancy opens up. But there's a logical compromise that might work.

One assumption is that the new Senate will block any nominee, as Jonathan Chait speculated recently. What's at stake is so large that Republicans have no reason to confirm any Democratic nominee to the high court. Only five Republicans voted to confirm Elena Kagan's nomination, and three of them (Olympia Snowe, Richard Lugar and Judd Gregg) are gone, with little sign of new moderates to replace them. So with 54 or so Republicans in the Senate, the votes just aren't going to be there for a similar nominee.

Noah Feldman thinks a more moderate choice such as Merrick Garland or Sri Srinivasan would likely be confirmed. That seems unlikely. They won't be moderates after the conservative noise machine is through with them.

After all, who is a Republican senator going to be more scared of: a general-election backlash over judicial nomination votes or a primary challenge? Who is going to have longer memories: November swing voters (who probably can't name three Supreme Court justices) or mobilized conservative interest groups and Tea Partiers?

Obama may put up another Sonia Sotomayor or Elena Kagan, then after that fails go for a Garland or Srinivasan and still get defeated. He should anyway.

After that, it's time for a compromise. It's hard to do on substance. The moderate candidates are too far away from where Justices Samuel Alito and John Roberts are, and Republican senators have little incentive to accept such nominees instead of just waiting until after the 2016 presidential election.

One solution: Barack Obama could select an old nominee, who might be confirmed.

In the event of a vacancy, a normal replacement could easily serve for decades. On the other hand, a nominee at age 75 or so would lower the stakes considerably, to the point at which obstruction would be less of a partisan imperative, even if the nominee was broadly within the liberal judicial tradition.

Obama is entitled to nominate anyone he chooses. And Republicans are entitled to oppose someone they think would be terrible for the nation (and terrible for groups in their party coalition). But both sides have an obligation to find and accept reasonable compromises. If a senior appointment is the only way out, it's hard for either side to oppose it.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Jonathan Bernstein at jbernstein62@bloomberg.net

To contact the editor on this story:
Katy Roberts at kroberts29@bloomberg.net