If President Obama were truly worried about the Court and the Constitution, he would seek to nominate a consensus nominee who would prove difficult for a Republican Senate to delay. Some have suggested lower-court judges who have served in Republican and Democratic administrations, but with little known about their constitutional views. He could even nominate his vice president, Joe Biden, who might survive confirmation because of his long service in the Senate.
But President Obama has never given a sign that he considers the Constitution anything other than an obstacle to overcome on his way to a progressive paradise. He swept aside the Constitution’s limits on federal power to pass Obamacare, and he ignored his constitutional duty to enforce the laws when he unilaterally rewrote U.S. immigration policy. If the last seven years are any indication, Obama will probably choose political confrontation. He may choose a nominee for his or her political implications, such as identification as a minority, in order to use a Senate delay as a political issue in the presidential campaign. The Senate should refuse to confirm anyone, to protect the Constitution from yet another Obama attack on its fundamental purpose and structure. Senate Republicans can honor Antonin Scalia by preventing his seat from being filled by a president who has so disregarded the constitutional text that the late justice did so much to restore.