With the death of Justice Antonin Scalia, Obama has been put into an impossible political situation. On the right, you have Mitch McConnell, who cannot stand the idea of the first African-American President replacing their conservative intellectual giant who spent 30 years on the court. And their outrage is sort of understandable. If Ruth Bader Ginsburg died in a year how would the left feel about Marco Rubio finding her replacement? Rubio has come out passionately in opposition to abortion even in the case of rape, and would work to make abortion illegal nationwide. Marco would likely be inclined both politically and ideologically to pick a justice who believes that the victim is the only one who needs to go to jail in this horrible, violent crime that impacts over 800 women per day. Ruth Bader Ginsburg would come back as a zombie just to beat the shit out of the new justice, everyone that voted for him, and that little puny man from Florida who says he stands for "family values."
On the left, you have Bernie Sanders and Hilary Clinton who are currently in a pissing contest for who is the biggest liberal. If Obama appoints a moderate, centrist juror, someone whose biggest injustice is that they compromise on either abortion, healthcare, commerce, immigration, gun rights, campaign finance reform, gay rights, privacy rights, or anything in a Democrat's campaign stump speech, then you will have well-financed liberal attack ads on the nominee. Not only does he have to deal with the little punk rich Republicans who want to ensure that it is a constitutional right for an oil company to make a profit, but he has to deal with the a fired up liberal wing who is beginning to sound like the tea party, more and more every single day.
The only way out of this political dilemma is to borrow a page from the West Wing and pull a Jed Bartlet. If you think it is stupid to pull from TV to discuss American politics, then I suggest you watch the Apprentice.
In Aaron Sorkin's the West Wing, he had a liberal President named Josiah Bartlet who was forced to replace the most conservative justice on Supreme Court. The justice died unexpectedly and it was in the midst of several massive political and foreign policy battles that were complex and threatening to national security. Sound familiar? Bartlet chose an unexpected route by asking the most liberal justice serving on the Supreme Court, who was also on the verge of death, to step down while he replaced both justices at the same time. Instead of nominating two moderate, left of center jurists, the only option he could get through a Republican Senate, he nominated one strong conservative and one strong liberal in the name of political balance on the court.
The argument is for a fair and neutral court. Whether or not Obama and his allies will admit this, but Justice Scalia represented how a vast majority of conservatives in America think. Scalia may have been viewed as extreme to many democrats, but Scalia's opinions and dissents on gay marriage, state rights, abortion, privacy rights, and the rights of the accused are right in line with the modern GOP. Ruth Bader Ginsburg is believed to be just as extreme but on the other side. She helps balance out what Scalia writes while giving these complex issues a fighting chance and articulating the liberal argument for each and every case.
The way to make a neutral court is not to packet it with moderates, but to find the those who will passionately fight for their side while articulating a very distinct, non-compromising ideology. The court was better with Scalia and Ginsburg on it at the same time. If the court swings too far to the left or too far to the right, it will begin to come a vehicle for partisan causes. This will throw into question the validity of the Supreme Court and since they do not have the power of the purse nor the power of the sword, they might start getting ignored.
This type of push back can been seen with the adoption of gay marriage this past summer in Obergefell v. Hodges. Who can forget Kim Davis coming out to Eye of the Tiger after refusing to follow the Supreme Court's order on gay marriage and ordering her office to not issue any same-sex marriage licenses. The Chief Justice of the Alabama Supreme Court, Roy Moore, has even denied the power of the Supreme Court by ordering the state of Alabama to enforce the ban on same-sex marriage. The irony of the fact is that he believes that he has that authority to rule on gay marriage but the Supreme Court doesn't is enough to knock me down.
Obama should nominate two justices. The court needs a person like Scalia on it to give its decisions weight to the conservatives around us. The court needs a person like Ruth Bader Ginsburg who can sit back and give no shits while she calls out the sexist, homophobic, gun tootin', racist, intolerant, anti-Muslim rhetoric that comes out of the mouth of the colleagues to the right of her.
Ginsburg should step down and allow each side to pick their golden child, their intellectual giant on the court.
Let the Republicans pick a young, conservative wonk who can continue on Scalia's legacy of textualism and bigotry. That is the only way that we can guarantee that Ginsburg can get replaced by a beautiful lesbian Latina woman like Puerto Rico Chief Justice Maite Oronoz Rodríguez, who has shown she has the intellectual equivalency of the Notorious R.B.G. and has declared her "commitment will always be with those who demand justice, regardless of race, color, gender, nationality, social origin or condition, sexual orientation or identity, or political or religious ideals."
Obama needs to put a bit more TV into politics after seeing who the Republicans picked for their nominee. Americans like a twist and I am saying he steals a page out of Jed Bartlet's playbook to help shape the court for the next few decades by ensuring both sides have a powerhouse to articulate their message.