SCOTUSblog.com analyst Tom Goldstein revised his prediction for Justice Antonin Scalia's replacement in the Supreme Court from his earlier belief that Ninth Circuit Judge Paul Watford was the most likely nominee, to saying now that Attorney General Loretta Lynch "is more likely."
Through Goldstein's lengthy analysis, a choice for the Obama administration emerges:
In thinking about how to respond to the vacancy on the Supreme Court, the administration has two priorities. First, fill the Scalia seat by getting a nominee confirmed. The stakes could not be higher: the appointment could flip the Supreme Court’s ideological balance for decades. Second, gain as much political benefit as possible and exact as heavy a political toll as possible on Republicans, particularly in the presidential election.
A Lynch nomination, according to Goldstein, is preferred more by President Obama because she is black and he already has the nation's first Hispanic on board, Sonia Sotomayor:
I think the President personally will be very tempted to appoint a black Justice to the Court, rather than a second Hispanic. His historical legacy rests materially on advancing black participation and success in American politics… The President likely sees value in providing a counterpoint to the Court’s only black Justice, the very conservative Clarence Thomas.
Obama's nominee will also most likely be a woman and according to Goldstein, several others fit the bill, including California Attorney General Kamal Harris. Yet, he doesn't believe she would want the job, and the others are either too young, or aren't ready. But Lynch, who is older than is typical for a nomination, "is a very serious possibility:"
The fact that Lynch was vetted so recently for attorney general also makes it practical for the president to nominate her in relatively short order.
Goldstein adds, "At some point in the process, she likely would have to recuse from her current position, but the Department of Justice could proceed to function with an acting head. Her history as a career prosecutor makes it very difficult to paint her as excessively liberal."
And because "fundamental conservative legal victories over the past two decades hang directly in the balance," as Goldstein writes, Republicans will resist any Democratic nomination.
"To take just one example, Ted Cruz is exactly right to say that a more liberal replacement for Justice Scalia is very likely to overturn the Supreme Court’s recent recognition of a Second Amendment right to possess firearms or at least render it a nullity as a practical matter," writes Goldstein. But Democrats, he says, are banking on the GOP's rejection to motivate black and women voters.
In conclusion, Goldstein states: "I think the administration is likely to nominate [Lynch], that the Senate will initially refuse to proceed with the nomination but ultimately accede after delaying the process significantly, and then vote her down on party lines. At that point, Republicans will slow-walk a follow-up nominee and claim that it is too close to the election to act on the candidate."