President Obama's cunning strategy for replacing a Supreme Court Justice is now beginning to emerge from the mist and in the words of Antonin Scalia, the Supreme Court Justice he is replacing, it is pure “jiggery-pokery.”
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In his opening gambit, only minutes after the announcement of the death of Judge Scalia, President Obama reminded the nation that it was his Constitutional duty to nominate a replacement for the Court and he will do so. Obama added that it is the Constitutional duty of the Senate to "consider" his nominee.
Hillary Clinton immediately repeated the same words, with emphasis on the reasonable argument that the Republicans should at least "consider."
The scene of President Obama giving the nation a lecture on the U.S. Constitution was covered by the mainstream media without a trace of irony. After all, this is the man whose staff say he refers to that document as "living and breathing." And one who regularly skirted the Constitution by failing to enforce laws on immigration, created new ones by fiat on gun control, while ignoring the document altogether in promoting Obamacare. One by one those issues, in various forms, keep making their way back up to the Supreme Court for resolution.
If the Republicans fail to "consider" an Obama nominee, he and his third term clone, Hillary Clinton, will accuse them of intransigence. They will ask voters to throw them out of Congress.
But here is the rub. If the Republicans agree to consider a nominee, as many pundits are now urging, Obama can send in a series of sacrificial lambs, knowing full well that they will be rejected but nonetheless gain political points for nominating them.
He will almost certainly nominate an African-American. As each successive nominee is rejected it makes his final nominee, the real nominee, so reasonable that the Senate will look positively brutish for turning them down.
Take, for example, the possible nomination of Judge Sri Srinivasan. "Those same Republicans approved him 97-0 for a lower court," the Democrats will say, "Even Ted Cruz and Marco Rubio voted for him!”
Republicans will be charged with dissing one more minority group. This time an Asian.
But if Republicans approve Judge Sri Srinivasan, they will have replaced a sure conservative Constitutionalist, who is a devout Catholic, with a liberal Hindu who was Obama's deputy solicitor general and point man on the fight against the Defense of Marriage Act.
If the Republicans continue to say they will not even consider an Obama nominee, the President will cut to the chase, name his most reasonable name and let the drama play out, like a budgetary shutdown, hoping for a similar result.
President Obama must surely have grown tired of seeing the headlines captured by his Republican critics, campaigning for the White House and taking him to task for an economy that remains flat and a world that is in chaos with a vacuum in American leadership. This Supreme Court vacancy is now his way back into relevancy. And it is a way to ensure his legacy.
Republicans must hold firm. This is not the government budgetary shutdown. School children will still get their milk. The Lincoln Memorial will remain open. Let the storm rage.
Justice Scalia was fond of reminding us that the U.S. Constitution is not a piece of abstract art to be interpreted as one likes. It is the law. And if we are to remain a nation of laws we need a Supreme Court Justice who understands that fact.
Doug Wead is a presidential historian and New York Times bestselling author. He has served as an adviser to two American presidents.