Here's What We Know About Obama's Potential Replacements for Antonin Scalia

At a press conference on Tuesday, President Barack Obama told the media that despite his lame duck status, there's "more than enough time" for him to pick a replacement for conservative Supreme Court Justice and original hot-take author Antonin Scalia, who died in Texas on Saturday. Since his death, the debate over whether the Democratic president will actually get to pick a new tenant for the now-vacant seat on the bench has become the biggest real estate dispute in Washington.

In the hours after the body of the "conservative lion" was discovered at a ranch in western Texas, Republican Senate Majority Leader Mitch McConnell announced that new bench appointments should be obstructed until the American people elect a new president. That statement was a subtle invocation of something called the Thurmond Rule, which is really just one guy's idea and not a rule at all.

Senators Ted Cruz and Marco Rubio, who are both running for president this year, made early appeals to some kind of longstanding de facto rule holding that presidents don't appoint justices during election years, but that idea has largely been debunked. Sure, it's pretty late in Obama's presidency for a fresh Supreme Court appointment, but there is still no actual precedent to support such a hard-and-fast rule, and there's that bit in the Constitution that says it's the president's job to appoint new Supreme Court justices. Still, with or without pretense of some kind of unwritten rule, the current Senate has made obstructionism its job, so all of this is to be expected.

In the immediate aftermath of Scalia's death, there was also talk—especially among the conservative media—about Obama taking advantage of some obscure parliamentary procedure to make a legally valid recess appointment that would bypass the Senate confirmation process. But White House spokesperson Eric Schultz has already stated that Obama won't be making any nominations until the Senate returns on February 22.

In other words, game on.

The truth is, a Republican doesn't actually have to claim to be following a rule to block a nomination in the Senate. McConnell and his allies control the upper chamber, and they can just filibuster Obama's pick for the next eleven months, or find other obstructionist techniques that prevent the nomination from going to a vote.

Assuming the Senate actually does vote, the confirmation process for Supreme Court nominees usually takes a few weeks, if everything goes very, very smoothly, and it has taken up to 99 days when it doesn't. That means that, since there's almost a full year left in Obama's term, there's still enough time for him to make at least three protracted attempts to appoint nominees. The last such knock-down-drag-out process happened during Ronald Reagan's administration, in 1987 and 1988, when Senate Democrats—not Republicans—were the obstructionists.

Initially, Reagan tried and failed to appoint a judge named Robert Bork to the Supreme Court. Bork was subjected to such a long, drawn out, politically disastrous cavity search by Senate Democrats that "to bork" is now in dictionaries as a verb, meaning "to obstruct," particularly for political reasons. Before the Senate could rip apart Reagan's second nominee, Douglas Ginsburg, he withdrew himself from consideration. Reagan finally appointed centrist Anthony Kennedy, and Kennedy was confirmed in the final year of the Gipper's administration.

Early guesses about who Obama might appoint have mostly been middle-of-the-road liberals. One early frontrunner appears to be Srikanth Srinivasan, a judge on the Ninth Circuit Court of Appeals. According to The New York Times' list of likely Obama nominees, Srinivasan is "seen as a moderate and a well-qualified up-and-comer, giving Republicans less justification to block him." The rest was mostly moderate federal judges like Paul Watford, a one-time favorite pick of SCOTUS Blog author Tom Goldstein.

But some boring centrist isn't necessarily the cleverest move for a Machiavelli-like Obama to make. Lee Epstein, a law professor and expert on judges, told Emily Bazelon of the New York Times Magazine, that one good strategy for Obama might be to focus less on middle-of-the-road picks and instead find someone exciting that Democrats can "really whip up support for." A popular figure from a swing state, or someone connected to an important issue that energizes people could potentially, "make the Republicans nervous about the consequences if they won't bring [them] up for a vote," Epstein said.

Tom Goldstein of SCOTUS Blog now favors another candidate for Obama to nominate to the bench: US Attorney General Loretta Lynch. If she were the nominee, it could work out well for Democrats, since analysts seem to think she has a good chance of slipping through the Senate's defensive line. She's historically tough on crime, making her hard to assail as excessively liberal, and on top of that, she's already been vetted by the Senate for her appointment as the attorney general. If confirmed, she would be the first black woman on the Supreme Court; plus she's a Protestant at a time when the Supreme Court doesn't have any Protestants.

If a Lynch nomination failed, that might also work out well for Obama's political party. According to Goldstein, her nomination could get transparently obstructed—a bad look for Republicans—or she might be subjected to a savage borking. "Either eventuality would motivate both black and women voters," Goldstein wrote.

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