With the unexpected passing of Justice Antonin Scalia, the United States Supreme Court now has only eight members. Before President Obama could even begin to discuss nominating a successor, and within only a few hours of the news of Justice Scalia’s passing, Senate Majority Leader Mitch McConnell (R-KY) declared that the Senate would not act on an Obama nomination to the Supreme Court. Senator Marco Rubio (R-FL) and Senator Ted Cruz (R-TX), both of who would have a vote on any Obama nominee, followed saying that the next President should be the one to appoint a successor to Justice Scalia.
Republican threats lead to Democrat Senators in disbelief— the kind of disingenuous and hypocritical disbelief that finds a special home in political circles in Washington, DC. Senator Chuck Schumer (D-NY) who in July 2007 said that the then Democrat controlled Senate should not confirm any nominees to the Supreme Court made during the final 18 months of President George W. Bush’s tenure suddenly found McConnell’s identical statement objectionable.
Sadly, you cannot make this up. The gamesmanship and hypocrisy evidenced on so many issues is breathtaking. The political reality associated with Justice Scalia’s sudden death is already too ugly and the President has yet to even announce a nominee.
If President Obama nominates someone with a liberal philosophy to replace the conservative Scalia the already ugly environment will become impossibly nasty and could do serious and irrevocable harm to the process and to the Court. A liberal nominee, if confirmed, could be expected to flip the Court 180 degrees, which is exactly why a liberal nominee has absolutely no chance to pass the Republican controlled Senate.
Talk is turning to the possibility that President Obama will seek a consensus candidate that would make it very difficult, if not impossible, for Republicans to stand in the way.
Many are hypothesizing that Judge Sri Srinivasan of the DC Court of Appeals could be that consensus nominee that would make life difficult for Republicans. Srinivasan was confirmed just several years ago by a vote of 97-0, and he clerked for retired Supreme Court Justice Sandra Day O’Connor (who was appointed by President Ronald Reagan). But Senator Cruz has already ruled out Srinivasan, and environmental activists are not thrilled with Srinivasan because he represented Exxon while he was in the private sector. So finding a consensus pick may be more difficult than some would like to admit.
If President Obama is really interested in having another appointment to the Supreme Court he will need to rise above the routine political parlor games. Presidencies are defined by moments that are thrust upon the executive, not created by the executive. In this moment President Obama has the opportunity to rise above the rancor and animus, to push past the distrust. He needs to find a nominee that is a highly qualified jurist who would be difficult, if not impossible, to fight against; a nominee that the people see as above the politics that so many have grown to distrust. That nominee could be Judge Raymond Chen of the United States Court of Appeals for the Federal Circuit.
Chen, an Obama appointee, was confirmed only several years ago by a vote of 97-0. Born in 1968 he is 47 years old, meaning he could easily serve on the Court throughout the next generation, in modern times an important consideration for a Presidential nomination to the High Court. Chen also comes from the Federal Circuit, which is anything but politically controversial, primarily responsible for handling patent appeals. Chen would also become the first Asian American to serve on the Supreme Court, another potentially important consideration for President Obama, who has shown throughout his term in Office that he likes breaking glass ceilings with appointments and nominations. Thus, Chen would have virtually all the same upside as would Srinavasan without any of the baggage that would make confirmation difficult, if not impossible.
On paper Chen is the perfect, non-controversial nominee. He has the virtue of having recently been vetted by the Obama Administration, and I’m certain he would be supported by industry. Given the jurisdiction of the Federal Circuit there would be no politically sensitive rulings that could cloud his nomination process. In fact, it is hard to imagine a sitting federal judge having a thinner dossier of decisions on potentially hot button issues than Judge Chen. Still, he has been on the Appellate Court for several years and he was Solicitor of the United States Patent and Trademark Office (USPTO) prior to his appointment, so he is intimately familiar with appellate practice and procedure. There will be no lurking judicial opinions or memos that in any way relate to religious freedom, the Second Amendment, the Environmental Protection Agency or any hot button issue that could derail a nomination.
Further making Chen the perfect choice is the odd reality that patents are not a political issue. Just look at the voting record on patent bills and you will see rather strange bedfellows who tend to agree on virtually nothing else. Indeed, the latest round of patent reform to pass, the America Invents Act (AIA), was supported by the Obama Administration, supported in the Senate by Senator Patrick Leahy (D-VT) and in the House of Representatives by Congressman Lamar Smith (R-TX). Current patent reform legislation pending is supported by Congressman Bob Goodlatte (R-VA) and Congressman Darrell Issa (R-CA), among others. In the Senate it is supported by Senator Chuck Grassley (R-IA) and Senator Chuck Schumer, while being opposed by Senator Dick Durbin (D-IL) and Senator Chris Coons (D-DE). Even Congressman Tom Massie (R-KY), a member of the House Freedom Caucus, has aligned with Senator Coons in opposition to patent reform. Where else do you see this kind of bi-partisan approach to an issue? Nowhere. Patents are a safe political issue where elected officials can and do reach across the aisle.
Still further, the Supreme Court has become ever more interested in patent cases, and there is no sign that will change anytime soon. The Court has once again taken several very important patent cases this term (see here and here), continuing a trend that has lasted for much of the last decade. If the Supreme Court is going to be taking patent cases why not have at least someone with a patent pedigree? Further, more technology issues can be expected to reach the Supreme Court in the coming decades, privacy issues that deal with government surveillance to regulation of the Internet and everything in between. Our world is only becoming more technologically complex. Having an electrical engineer on the Supreme Court who is intimately familiar technological issues would make a lot of sense.
Nominating Judge Chen for the Supreme Court would save the country from acrimony and division, while still allowing President Obama to continue to diversify the Court. In addition to diversifying the Court and welcoming the first Asian American Justice, Chen would become the only member of the Court not from an Ivy League school. Chen received his J.D. from the New York University School of Law and his B.S. in Electrical Engineering from the University of California at Los Angeles. Thus, putting Chen on the Supreme Court would diversify the thought and experiences of the Justices, as well as providing additional ethnic diversity.
Of course, the icing on the cake is that Chen is also a first rate Judge and a top legal mind. With no obvious political ideology not only could he actually be confirmed, but he could be expected to call balls and strikes in a fair and objective way. It is hard to conceive of any serious objections to a Chen nomination.
With the nomination of Judge Chen to the Supreme Court President Obama will avoid the drama we normally see with judges coming out of other appellate courts, and make it very difficult for Republicans to refuse Chen a hearing or to ultimately vote no. In short, the nomination of Judge Chen makes perfect political sense for the President, and it would also be good for the country.