Back in the good old days of political bipartisanship — or at least the better old days — the Senate confirmed Antonin Scalia, the pick of President Ronald Reagan, 98-0. That was 1986. s
While not internally the most rancorous of high courts — that happened during the Roosevelt to Eisenhower administrations — this, nevertheless, is 2016, a time of blatant, tendentious partisanship across all branches of government. Before the sun had set on news of Scalia’s untimely death, Senate majority leaders said President Barack Obama had no right to appoint a replacement associate justice.
Obviously, Obama will face a contracted and bitter fight with his Supreme Court nomination. But maybe this is an opportunity to open a door to bipartisanship. Obama, who has decried partisanship, can name someone who does not favor the left any more than Senate Majority leader Mitch McConnell would prefer to bolster the right.
And he can do it in a dramatic way that would be difficult for the Republican majority in the Senate to refuse confirmation. He could name not only one of their own but one of their own who has been in the race for the presidency — U.S. Sen. Lindsey Graham or New Jersey Gov. Chris Christie.
Both men possess a compelling set of credentials for the job.
Both men, lawyers, do not belong to the far right of their parties. In their years of public service, they have established themselves as leaders in their party. But they have shown the ability to work with the other side.
While it might not seem that being a governor, as Christie is, would be a qualification for the court, there is precedent. Two of our greatest chief justices came to the bench with that job on their resumes — Charles Evans Hughes, elected to two terms in New York, and Earl Warren, of California, elected to three.
Similarly, Hughes was a presidential contender in 1916, stepping down as associate justice to run. He lost to Woodrow Wilson by the slimmest of margins. He became one of our country’s most outstanding secretaries of state under Warren G. Harding from 1921 to 1925.
Gov. Warren was Thomas E. Dewey’s vice-presidential running mate in 1948. He unsuccessfully sought the presidential nomination in 1952 and was nominated for chief justice by President Eisenhower when Fred Vinson suddenly died in 1953.
Graham has not been a governor, but he has military as well as elected service experience, having attained the rank of colonel. He campaigned with dignity and common sense. He did not grow up with privilege. He has been able to get along well with Republicans and Democrats in the Senate.
Warren was the last Supreme Court justice to have been an elected political figure to join the Supreme Court. His service, and that of Hughes, was a plus in that it gave them an appreciation of the complexity of the law, rather than seeing it through the prism of one-dimensional ideology.
In the Senate itself are Republican incumbents or retired members such as Orrin Hatch and Richard Lugar, who might also be good choices. So would Democrat Patrick Leahy. Lugar and Leahy lean inward to the moderate side. Hatch has moderate DNA, was best friends with the Senate’s iconic liberal Ted Kennedy and has been a champion of health insurance for all children.
None of these people think the way a strong liberal would. None would make Ted Cruz particularly happy, either. They would, however, take the job seriously, and they avoid being predictable, a sad norm for both the liberals and the conservatives on the court. They would find themselves in a thoughtful middle area, currently and solely occupied by Justice Anthony Kennedy.
They would make no one and everyone OK with the system. Imagine a Supreme Court leading with what is just and solid American values when coming to a decision as opposed to jerking knees.
What they would offer Obama and most of America is an associate justice they could live with and one who would be confirmed with a minimum of childish quarreling, boorishness and unprecedented twisting of the underpinnings of good government. The problem with liberals and conservatives wanting their way with Supreme Court nominees is their desire for orthodoxy where there is little room for individual circumstance, civil arguments, commonsense values of the American people.
The election of 2016 is a paradox in this regard. Extreme candidates are doing surprisingly well. But the majority of Americans are less concerned about ideological quarrels than they are about dysfunctional government. They want a system that works to face the problems that abound today.
Central to that is balance and fairness, an honest approach to issues — including legal issues — that seeks not ideological purity but a just and best answer. Obama can get such a justice in the likes of Christie or Graham and others, while at the same time, demonstrating how effective it is to reach across the aisle.
If appointing a washed-out Republican presidential candidate is too much of a leap of faith, there is another option: As quietly suggested by a few sources, the president ought to consider nominating lifelong Republican Sandra Day O’Connor, who resigned from the court in 2006 to care for her ailing husband. He died three years later, but she remains spry at 85.
Appointed by President Reagan, O’Connor was supported in her nomination by Ted Kennedy and Barry Goldwater, the alpha and omega of the political spectrum at the time. Already up to speed, she could hold the ninth seat for two years and then re-resign when the next president could make a more long-term choice.
Our point is America does not only need an associate justice to replace Scalia, it requires even more a culture in which leaders play not to the margins but to the frustrated middle of America who yearn for a solution-driven world. Obama could add to legacy by reaching across the aisle.
Hamilton is a professor of journalism at LSU’s Manship School of Mass Communication and a global fellow at the Woodrow Wilson International Center of Scholars. Shelledy is a professional in residence at the Manship School of Mass Communication and a former newspaper editor.