The process of picking a Supreme Court justice is notoriously secretive. Late-night meetings, myths of White House “shortlists” and trial balloons of potential nominees coming from who-knows-where.
It’s the perfect parlor game, and needless to say, Washington loves it.
And one name coming up in green rooms and bars might be the combination of the best “what if” discussion and biggest political bombshell: Elizabeth Warren.
To liberals, Warren, the Massachusetts senator, former Harvard law professor and consumer protection advocate might be the perfect nominee — a combination of progressive politics and values whose pick would do nothing but provoke Senate Republicans who already don’t want to hold a hearing, let alone vote, on anyone President Barack Obama chooses.
Warren’s nomination would spark nothing less than a political firestorm. It would wake up the Democratic base, which is already watching the senator for any hint of whom she will back in the presidential race: Hillary Clinton or Bernie Sanders. In essence, it could put Warren on the presidential ticket in absentia.
At the same time, it would be interpreted as a signal that the White House is only interested in a fight with Republicans by sending up a 66-year-old first-term liberal senator to replace one of the most admired conservatives justices of all time, Antonin Scalia. One Republican Hill source said a Warren nomination would “demonstrate to the world” that this is “all political.”
Warren’s office did not respond for comment.
The hints Obama has given leave much to interpretation.
“He or she will have an independent mind, rigorous intellect, impeccable credentials, and a record of excellence and integrity. I’m looking for a mastery of the law, with an ability to hone in on the key issues before the Court, and provide clear answers to complex legal questions,” the president wrote last month on Scotusblog about his thought process.
Warren would fit within the president’s definitions. She spent nearly 20 years as a law professor at Harvard. Early in her career she became a rising star in the field of bankruptcy law and went on to pave the way for the U.S. Consumer Financial Protection Bureau — and then was effectively blocked by Republicans from getting the job running it.
Her nomination would add a new dimension to the Supreme Court bench at a time when all of the justices, with the exception of Justice Elena Kagan, previously served as judges on the federal bench. And she comes from a hardworking middle-class family — a background that might be appealing to Obama, who has spoken of wanting to pick judges who have empathy for the underdog.
Until there is a nominee, speculation will swirl, not only about possible picks but also potential strategies. Warren would represent the “sacrificial lamb” theory that recognizes with little chance of getting someone confirmed the process should be used to highlight the political stakes.
Days after Scalia died, some speculated that Attorney General Loretta Lynch might be in the running, citing her strong legal background and the chance to make history as the first black woman appointed to the court. Tuesday she said she’s not interested. And there was the short-lived frenzy over Republican Nevada Gov. Brian Sandoval, who would have been a blatant political play to force the Republicans to dare to say no to a fellow party member. He quickly took himself out of contention.
Sen. Chuck Schumer, a key Democrat on the Judiciary Committee, suggested Tuesday that the president would choose a “mainstream nominee.”
And the conventional wisdom has been Obama will pick a judge who has been recently vetted and easily confirmed, like appellate court judges Sri Srinivasan and Jane Kelly. Both of those judges are being vetted, CNN is told, along with Ketanji Jackson Brown and Merrick Garland, a Bill Clinton appointee who was considered for earlier high court openings.
But some of those judges Obama might nominate under normal circumstances like Kelly or Brown may not want to spend all year getting battered politically without the likelihood of winning the job. Why spoil, the theory goes, a good liberal judge that a President Hillary Clinton could nominate, especially if someone like Ruth Bader Ginsburg leaves the bench?
And another point for the parlor game: if Warren is somehow confirmed, the Republican governor of Massachusetts would get to appoint a short-term successor. Interim senators served for a few months after the death of Ted Kennedy and John Kerry’s move to secretary of state. That would give Republicans another vote in the Senate for a few months.
Since Scalia’s death, Warren has not been shy to express her sentiments about the current stand off between the president and Senate Republicans.
On her Facebook page she blasted Senate Republicans who she said “took an oath” just like Senate Democrats did.
“Abandoning the duties they swore to uphold would threaten both the Constitution and our democracy itself,” she said. “It would also prove that all the Republican talk about loving the Constitution is just that — empty talk.”