As the close of his presidency approaches, Barack Obama seems a bit melancholy. As outgoing presidents often do, Obama is performing a retrospective review of his accomplishments over the last seven years. The president’s reflection on his administration has not been entirely self-reverential. Obama has also lamented his failure to live up to a promise imposed upon him by his admirers: the notion that he was a unifying figure who would cultivate a national reconciliation following the bitter partisan battles that typified the Bush era. In that charge, Barack Obama acknowledges he has failed.
In his final State of the Union address, the president revealed that one of his “few” regrets is that “rancor and suspicion between the parties has gotten worse instead of better” over the course of his presidency. Obama later averred that his “inability to reduce the polarization and meanness in our politics” has only made meeting the nation’s present challenges harder. But his mea culpa is a bizarre sort of navel-gazing that is, rather typically, characterized more by projection than introspection. The president has avoided a self-critical audit of his conduct as president: Inviting Paul Ryan and House Republicans to their own dressing down after working with them on a compromise budget in 2011, insisting that opponents of the Iran nuclear accord were in league with a band of murderous theocrats in Tehran, allowing members of his administration to imply strongly and frequently that any opposition to them was motivated by petty bigotry and racial animus, and presiding over the curtailment of the GOP’s minority rights in the Congress, et cetera. Again and again, Obama has insisted that his Republican colleagues’ stubborn refusal to capitulate to him represented a rejection of the Republic itself. The president stoked partisan resentment, weaponized it, and now mourns his own efficacy.
Rancorous partisanship in Congress and among voters is exacerbated by two unexpectedly hard-fought presidential primary campaigns. Add to this poisonous mix another toxic ingredient: a fight over a lifetime appointment to the most important court in the land. Like virtually every public policy issue in a presidential election year, replacing Antonin Scalia on the Supreme Court bench will provide Democratic and Republican partisans the opportunity to posture and wax morally righteous for the benefit of their supporters. Only the most credulous of political observers will see earnestness in Democratic and Republican appeals to precedent in the fight over whether to confirm a lame duck president’s nominee in the final year of his presidency. Ahead of a general election, both Republicans and Democrats would likely prefer the galvanizing and energizing force of a stalemated fight over the makeup of the carefully balanced Supreme Court to the resolution of that fight. For a president who is so publicly shaping his legacy in office before he has even left it, the opportunity to name another appointment to the Court is too great to squander.
With the Republican Senate virtually united in its opposition to confirming any Supreme Court nominee amid a moment of great political flux and with neither party having a clear governing mandate from the public, Barack Obama’s nominee will serve only as a political statement. With that in mind, the president has two courses before him.
The first would be to box in Republicans with a candidate who has obvious cross-partisan appeal. For all the Democratic Party’s self-professed civic mindedness, partisan liberals will be shocked to discover that they are as political as anyone else. “Senate Minority Leader Harry Reid and several other Democrats want President Barack Obama to choose a Supreme Court nominee who would inflict maximum political pain on Republicans,” CNN reported. That “pain,” many suspect, would be administered by voters angered by the Republicans’ refusal to not only confirm but also even entertain an Obama nominee.
There is a reason Democrats cite the dubious precedent set by the 1987 Supreme Court nomination of Anthony Kennedy – who won an election year confirmation in 1988 — and it’s not a noble one. Kennedy, President Ronald Reagan’s third choice nominee, was a compromise after his preferred candidate – Robert Bork – was fisked by a Democrat-led Senate to the point that he was no longer viable. Bizarrely, Democrats are citing the precedent set by Bork’s confirmation process favorably. At least Bork received a hearing, they contend, even if it was not a fair one. That’s quite the admission on the part of liberals. Their preference, one supposes, is for Barack Obama to nominate a capable and qualified justice and for fanatical Republicans to strap the nominee to the stake, issue the zealot’s condemnation, and provide Democrats with a martyr ahead of what promises to be a bitterly contested presidential election year. Step right up, justices.
Still, that would seem the obvious course for Barack Obama to take. Congressional Republicans would indeed find themselves in a bit of a bind by refusing to give the president’s nominee a vote. It is, however, less the safe course it might seem for a legacy-obsessed president amid a snowballing revolt by the left wing of his party. Amid a socialist rebellion among Democrats, the central tenet of which is that the president has been too timid, too compromising, too willing to acquiesce to the right, nominating a confirmable centrist to the Court is a more fraught prospect than it might appear.
If the Democratic presidential primary is characterized by just one dynamic, it is the extent to which Barack Obama has failed both his party and the nation. Hillary Clinton has determined that she benefits little from criticizing the president and is running for Obama’s third term, but the unanticipated strength of Bernie Sanders is due in large part to his willingness to criticize Barack Obama from the president’s left. Economic growth is stagnant, and unemployment is far larger than the statistics suggest; minorities in America are struggling to combat rising discrimination and adversity; the Affordable Care Act is a hopeless half-measure. If there are elements of the president’s legacy worth preserving for the Sanders voter, they are few and far between. Add to this the notion that Barack Obama would compromise one last time? That he would surrender a once-in-a-generation opportunity to replace one of the most conservative jurists on the Court with a firebrand liberal? How would the mutinous Democratic Wing of the Democratic Party react to such a perceived betrayal?
Amid discomfort over the prospect of a moderate Supreme Court nominee, both Democratic presidential candidates may flirt with or outright reject the idea that they would re-nominate such a candidate to the bench should they win the presidency. It would be one of the most powerful rebukes Barack Obama could endure – one from his erstwhile allies, and which would finally and firmly demonstrate that the Democratic Party is no longer Barack Obama’s party. Faced with this choice, does the president really want to put Republicans in a discomfiting position, or would he prefer perhaps to salvage his brand as a transformative liberal president whose full potential was thwarted by the mulish obstinacy of congressional Republicans? All of a sudden, the choice isn’t so clear.