Scalia’s death brings question of do or delay

Unusual presidential politics became even more surprising this weekend with the unexpected death of conservative U.S. Supreme Court Justice Antonin Scalia — bringing new urgency to questions of whether each branch of government might shift direction this year.

University of Iowa law professor Todd Pettys said the unfolding events and speculation about the future give his law students something pivotal to talk about.

'I'm aware of the fact that students are going to law school now during what will prove to be one of the most attention-worthy stretches in Supreme Court history in maybe a century,' he said.

With so much at stake, prominent Republicans have come out against President Barack Obama nominating a justice as candidates are vying to replace him. Iowa GOP Sen. Chuck Grassley, chairman of the Senate Judiciary Committee, is among them.

But leading Democrats are calling for just the opposite, and Obama said he'd nominate a justice 'in due time.'

Although the White House has not made public any short list of possible candidates, several names already are circulating in national news reports — including federal appeals court Judge Jane Kelly of Cedar Rapids — that the president might eventually put forth.

But even if Obama nominates someone as he said he will, it doesn't mean a vote will be taken anytime soon.

The Republican-led Senate must either approve the nominee, reject him or her, or delay a decision.

'It's not a surprise that those on the left want the seat filled and those on the right do not,' said UI associate political science professor Tim Hagle. 'It's no surprise that politics will play an even larger role in the process this time. That's one reason that justices strategically retire — to avoid doing so in presidential election years.'

Only two justices have died while serving on the court in the last 60-plus years, Hagle said.

'So we don't have any examples of dealing with this type of situation under the current political environment,' he said.

But both Hagle and Pettys expect political fallout.

A Senate rejection of an Obama nomination that a significant chunk of the electorate identifies with — like a racial minority — could benefit Democrats in the presidential and Senate elections.

And if Republicans lose the bid for the White House in November, they run the risk of getting a nominee more liberal than one Obama might propose.

'If they have any doubts, it is in their best interest to take the possible moderate they can get now,' Pettys said. 'Because the person who gets nominated by a Democratic winner is likely not to be as moderate as anyone Obama would put forward now.'

Obama, according to the UI experts, is likely to go in one of two directions: He could choose to nominate a moderate candidate with solid experience and historical support from both parties in hopes of getting approval before he leaves office. Or he could choose someone who would provide political mileage — or, Petty said, someone who does both.

'Obama could make it interesting by picking someone who is a known moderate and who has the respect and trust of Republicans and Democrats alike,' he said. 'If he can find such a person.'

An illustrative case may be Kelly, 51, a former federal public defender. She was working Monday from her chambers at the U.S. District Courthouse in Cedar Rapids, but declined to comment.

Kelly was acquainted with Obama during their time at Harvard Law School, but perhaps more important to her chances is the support she has received from Grassley.

Kelly clerked for U.S. Court of Appeals Judge David Hansen of Mount Vernon. Grassley twice suggested Hansen for federal judgeships, helping him land on the U.S. District Court for the Northern District of Iowa before being appointed to the 8th Circuit.

So when Kelly was nominated for the 8th Circuit, Hansen wrote to Grassley to tell him her 'exceptionally keen intellect' when she clerked for him in 1992 and 1993 would be 'a welcome addition to the court.'

With help from Grassley, Kelly was unanimously confirmed to the federal bench in 2013 just 83 days after her nomination. The average — even for uncontroversial Obama nominees — has been closer to 300 days.

Sixth Judicial Associate District Judge Casey Jones, a close friend of Kelly's, said he wasn't surprised her name is circulating in news accounts.

'She's a brilliant lawyer and judge,' Jones said. 'She's fair and a thorough lawyer, very deliberate. Personally, she's warm, funny and caring person.'

Sixth Judicial District Judge Ian Thornhill, who as an assistant U.S. attorney worked with Kelly when she was a public defender, said she is well-qualified.

'She's a great attorney ... brilliant, respectful. She's the same person in any crowd. If you ran into her on the street, you wouldn't know she was an 8th Circuit judge and someone listed as a possible nominee for the Supreme Court. She's humble and just down to earth.

Carl Tobias, University of Richmond School of Law professor and federal judiciary expert, said there are several reasons Kelly's name is circulating — and one is because of Grassley's past support.

'She also was easily confirmed and has a clear record that senators can easily access,' Tobias said. 'Grassley has said the Senate should wait for a new president, but he and GOP senators have a constitutional duty to give advice and consent on the president's Supreme Court nominee.'

But if mention of her name was to curry support of the senator whose committee a nominee must pass through, it wasn't working.

'It's not an issue of any particular candidate. The issue is how the November election is a unique opportunity for the grass roots to have a real voice in who they want to nominate a lifetime appointment to the highest court, an appointment that will change the high court and impact individual freedoms in America in dramatic and lasting ways,' Grassley said in a statement. 'If a Democrat wins the White House, I'm sure Jane Kelly would be on any Democrat's short list of candidates.'

James Q. Lynch of The Gazette contributed to this report.