Appoint a senator? For Obama, options are limited

Source: Josh Kurtz, E&E reporter • Posted: Friday, February 19, 2016

As President Obama contemplates the monumental political task of replacing the late Supreme Court Justice Antonin Scalia, some analysts have suggested that he nominate a member of the Senate to the high court — on the theory that it will be hard for senators to reject one of their own.

But that argument only goes so far — especially in a closely divided Senate in an election year, especially with Republicans holding 31 of the nation’s 50 governorships and especially with ideological control of the court hanging in the balance.

The fact is, there aren’t that many Democratic senators for Obama to choose from who represent states with Democratic governors, who in most cases would then be responsible for naming a replacement senator. Republicans hold a 54-46 edge in Senate control, including the two independents who caucus with the Democrats, and with the GOP defending considerably more seats than Democrats this November, Obama is not going to want to make his party’s task of regaining the Senate majority more difficult.

It’s true that senators nominated to top government positions usually sail through the confirmation process. Obama has had three senators in his Cabinet: Hillary Clinton was his first-term secretary of State, and the Senate confirmed her by an overwhelming 94-2 vote. Ken Salazar was his first-term Interior secretary, confirmed in a unanimous voice vote. John Kerry replaced Clinton as secretary of State, confirmed on a 94-3 vote. Democrats controlled the Senate during all three votes.

A former Republican senator, Chuck Hagel, became Obama’s secretary of Defense early in the second term, but he had been out of office for four years. (Republican Sen. Judd Gregg was nominated to be secretary of Commerce in Obama’s first term, but he withdrew his nomination well before a vote.)

In 1989, the Democratic Senate voted 53-47 to block the nomination of former Sen. John Tower (R-Texas) to be President George H.W. Bush’s secretary of Defense. But Tower had left the Senate four years earlier and had been hit with accusations of bad personal behavior and professional conflicts of interest. His defeat paved the way for Dick Cheney, who was then the House minority whip, to be nominated and confirmed as Defense secretary.

There are currently 16 states with at least one Democratic senator and a Democratic governor. But for a variety of reasons, the pool of Democrats who Obama might even consider nominating to the Supreme Court is considerably smaller.

  • Four states — California, Montana, New Hampshire and Washington — only have Democratic senators who are not lawyers. While being an attorney isn’t a legal requirement for serving on the high court, an appointment of a non-lawyer would be unprecedented. The last Supreme Court justice who wasn’t a judge before being nominated was William Rehnquist, who was a senior Justice Department official when he was selected by President Nixon in 1972.
  • Three other states — Hawaii, Oregon and Vermont — have Democratic senators who are lawyers but are 65 or older, likely too senior to be considered when Obama is undoubtedly looking for a future justice who can serve for several decades.
  • Sen. Bob Casey (D-Pa.) is a lawyer who is 55 years old. But he does not support abortion rights — almost certainly a disqualifier for a Democratic president.

So which Democratic senators are lawyers who fit into the desired age category and come from states with Democratic governors?

  • Colorado Sen. Michael Bennet is 51.
  • Connecticut Sen. Chris Murphy is 42. The other Connecticut senator, Richard Blumenthal, a former state attorney general, is 70.
  • Delaware Sen. Chris Coons is 52.
  • Minnesota Sen. Amy Klobuchar, a former top prosecutor in Hennepin County, is 55.
  • Missouri Sen. Claire McCaskill, who was also an elected prosecutor, is 62.
  • New York Sen. Kirsten Gillibrand is 49. The state’s senior senator, Chuck Schumer, who is an attorney, is 65 — and in line to become the Democratic Senate leader in the next Congress.
  • Rhode Island Sen. Sheldon Whitehouse, a former state attorney general, is 60. The state’s senior senator, Jack Reed, who is a lawyer, is 66.
  • Virginia has two senators who are lawyers: Mark Warner is 61, and Tim Kaine turns 58 next week.

But even in a couple of these states, there are potential complications if Obama tapped one of the senators for the Supreme Court: In the event of a Senate vacancy in Connecticut, the governor appoints a short-term interim replacement, and a special election follows soon after — meaning there’s a chance the seat will not remain in Democratic hands. The same political risk exists for Democrats in Rhode Island, where a Senate vacancy is filled in a special election.

In Colorado, Delaware, Minnesota, Missouri, New York and Virginia, Senate vacancies are filled by the governor. An election is next held in the next even-numbered-year election to fill the remainder of the former senator’s term — or to start a new six-year term, if applicable.