The death of Justice Antonin Scalia already has deepened the divide in American politics. Even when the president’s party controls the Senate, Supreme Court confirmations are difficult; just ask President George W. Bush about what happened with Harriet Miers.
In the midst of an open-seat presidential election, and with the White House and Senate controlled by opposing — and increasingly polarized — parties, it might seem impossible for President Barack Obama to put a new justice on the bench.
The key word there is new. To minimize the chances of a Senate filibuster, Obama should nominate Sandra Day O’Connor. There is historical precedent for reappointing a justice: Charles Evans Hughes stepped down from the court to run for president in 1916; in 1930, he rejoined the court as chief justice.
Justice O’Connor is nearly 86 years old, which would normally be considered a liability. Under these circumstances, her age is a significant asset. She is more than capable of serving on the court for a year or two, after which she could retire and the new president could use his or her political mandate to appoint a younger justice. Reappointing O’Connor would benefit Obama, the court, and, most importantly, the American people.
In 2006, O’Connor retired from the Supreme Court to care for her ailing husband. Since his death she has used her status as a retired justice to hear several important cases on the federal courts of appeal. Her ability to write pragmatic judicial decisions hasn’t diminished with age.
O’Connor’s view of the law is a product of her remarkable life. Unlike the career judges who comprise the rest of the court, O’Connor took a different path. Before becoming a judge, she was the Republican majority leader of the Arizona Senate — the first woman in American history to lead a state senate.
Elected officials bring a different perspective to the bench; Chief Justice Earl Warren, author of Brown v. Board of Education, engineered many crucial unanimous decisions using the instincts he honed as governor of California.
During her time on the bench, O’Connor was frequently labeled the court’s swing justice, but that term is deceptive. It’s not that she’s some easily swayed judicial fence-sitter; it’s that her jurisprudence doesn’t fit neatly into an ideological box. She crafted carefully worded opinions, deciding cases on narrow legal grounds to prevent unforeseen social consequences.
Usually, presidents relish the opportunity to replace a justice appointed by a president from the opposite party. With less than a year in office, Obama has little chance of moving the court significantly to the left, but he could keep the court fully staffed. Moreover, nominating O’Connor would increase gender diversity on the court and would be consistent with Obama’s (often unsuccessful) philosophy of forging consensus and compromise.
Nominating O’Connor would also be a shrewd political move. Republican leaders routinely tout President Ronald Reagan as an icon; a vote against confirming O’Connor would be an admission that the patron saint of the modern Republican Party wasn’t infallible. Senate Republicans couldn’t question O’Connor’s credentials. And they would be unable to cast her appointment as one that would shape the court for the next generation.
Beyond the Beltway political maneuvering, however, lies the greatest virtue of this Supreme Court compromise. With only eight justices, the Supreme Court risks tie votes in several crucial cases this term. In a 4-4 decision, the ruling of the lower court stands, and no precedent is set. It is as if the justices never heard the case in the first place.
A key function of the Supreme Court is settling disputes among the lower courts about how to interpret the Constitution and federal law. The Constitution cannot mean one thing in Alabama and something else in Wyoming. For the court to carry out its mission, it needs to avoid tie votes.
One way or the other, the presidential election will decide the long-term future of the court. The only question is whether Obama and Senate Republicans are more interested in scoring political points or keeping the court functioning this year.
Reappointing O’Connor is the best way to achieve the latter. And, if an O’Connor appointment wins over public support, the eventual presidential nominees on either side will need to address the question of whether a doctrinaire liberal or conservative judicial philosophy truly is preferable to a pragmatic jurisprudence.
The one thing this election season has taught us is that the traditional political playbook no longer works. The same logic applies to this Supreme Court vacancy.
William Blake is an assistant professor of political science at the University of Maryland, Baltimore County. Hans Hacker is an associate professor of political science at Arkansas State University.