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Uncertainty, Intrigue Surround US Supreme Court Vacancy

  • Michael Bowman

FILE - A U.S. flag flies at half-staff in front of the U.S. Supreme Court in Washington, Feb. 13, 2016.

FILE - A U.S. flag flies at half-staff in front of the U.S. Supreme Court in Washington, Feb. 13, 2016.

Two days after the death of U.S. Supreme Court Justice Antonin Scalia, the path to installing a successor remains murky and a topic of intense intrigue in a nation where political divisions and polarization are magnified by a fierce presidential campaign.

The White House said Monday that President Barack Obama has started preliminary discussions about a nominee.

Spokesman Eric Schultz said Obama would look for a nominee who understands that justice is something that affects people's daily lives, and not just an abstract theory. Schultz added that it is "wholly irresponsible" for the Republican Congress to leave the Supreme Court short staffed by refusing to confirm an eventual nomination from Obama.

Senate Majority Leader Mitch McConnell has said the chamber will not act to ratify any candidate named by Obama, preferring to leave the post open until a new president takes office in January 2017.

FILE - Senate Majority Leader Mitch McConnell of Ky. walks to his office on Capitol Hill in Washington.

FILE - Senate Majority Leader Mitch McConnell of Ky. walks to his office on Capitol Hill in Washington.

Obama could avoid that logjam by exercising his right to make a "recess" appointment, an option that exists while Congress is not in session — as is the case this week. The White House signaled Monday that the president will not take that step, however, which would infuriate the Republican-led legislative branch.

Should Republicans hold firm to their pledge, the November elections could become a watershed moment for all three branches of government, determining not just control of the White House and Congress, but also shifting the Supreme Court's ideological makeup for decades to come.

Speculation rampant

With Congress adjourned and Obama hosting Southeast Asian leaders in California, speculation about next steps in the confirmation battle is running far ahead of real information.

Judicial watchers say Obama could nominate an Indian-American, Sri Srinivasan, whom the Senate confirmed to the next highest court by a vote of 97-0 in 2013. Srinivasan has worked for both Republican and Democratic administrations, and would be the first South Asian — as well as the first person of the Hindu faith — to serve on the Supreme Court.

U.S. Deputy Solicitor General Sri Srinivasan

U.S. Deputy Solicitor General Sri Srinivasan

Srinivasan has not publicized his ideological leanings, a fact that could make Republican opposition to his nomination less likely. But his selection could also disappoint members of Obama's Democratic Party, who are eager to replace the arch-conservative Scalia with a confirmed moderate-to-liberal jurist.

Also often mentioned are Attorney General Loretta Lynch, an African-American whom the Senate narrowly confirmed last year, and several Democratic senators, including Amy Klobuchar, who served as a prosecutor in her home state of Minnesota.

FILE - U.S. Attorney General Loretta Lynch.

FILE - U.S. Attorney General Loretta Lynch.

Much may depend on the White House's reading of resolve among Senate Republicans. If Obama believes he can cajole the Senate to vote on a nominee, the case for a consensus candidate with bipartisan support grows stronger. If the president takes McConnell at his word, he may be more inclined to nominate a liberal trailblazer who will excite and rally progressive, Democratic constituencies ahead of the November elections.

A few Republican senators facing tough re-election battles in November, such as Mark Kirk of Illinois and Rob Portman of Ohio, have yet to endorse McConnell's call for delay. Also withholding any firm commitment are Republican senators who buck their party's opposition to abortion rights, like Susan Collins of Maine and Lisa Murkowski of Alaska.

Numerous hurdles

Even so, the hurdles for an Obama Supreme Court pick remain formidable. That nominee would need 14 Republican senators to join with Democrats in order to advance to a final confirmation vote. And full Senate consideration would occur after the Republican-controlled Judiciary Committee vetted and confirmed the nominee with a majority vote.

The committee's chairman, Senator Chuck Grassley, is backing the majority leader's call to await a new president before considering Scalia's successor.

"The fact of the matter is that it's been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year," Grassley said in a statement. "It only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice."

A U.S. flag flies at half-staff in front of the U.S. Supreme Court in Washington, Feb. 13, 2016, after is was announced that Supreme Court Justice Antonin Scalia, 79, had died.

A U.S. flag flies at half-staff in front of the U.S. Supreme Court in Washington, Feb. 13, 2016, after is was announced that Supreme Court Justice Antonin Scalia, 79, had died.

Democrats argue that Obama has almost a full year left in his presidency and is duty-bound to put forward nominees for judicial vacancies.

"The president can and should send the Senate a nominee right away," said the Senate's minority leader, Democrat Harry Reid. "It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat. Failing to fill this vacancy would be a shameful abdication of one of the Senate's most essential constitutional responsibilities."

The U.S. Constitution calls for the president to nominate judges and for the Senate to render its advice and consent. But the founding document establishes no deadlines or time limits — neither on how late in his tenure a president may nominate, nor how long the Senate may take to confirm or reject a nominee.

White House Correspondent Mary Alice Salinas contributed to this report from Rancho Mirage, California

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