With the passing of Justice Antonin Scalia this weekend, many mourn one of the most consequential jurists in American history. Replacing him will be no easy task—not just because of the influence and strength of the late Justice—but also because Senate Republicans have taken the stance that no Obama nominee will receive their assent.
Yet, there is one option that should be acceptable to both: Theodore Olson.
Ted Olson, 76, is one of the most respected attorneys in our nation—having received the American Bar Association’s highest honor.
Moreover, in recent years, Ted Olson has proven himself a forward-thinking legal mind. In Perry v. Schwarzenegger, he joined with his former opponent in Bush v. Gore (he defended Bush), David Boies, to advance marriage equality, while also preserving religious freedom.
He is also famous in liberal circles for his defense of First Amendment rights. When Pierre Thomas, then-Senior Justice Correspondent for CNN, was held in contempt of court for refusing to give up his sources, Ted Olson was the attorney who filed Thomas’ appeal to the Supreme Court.
As a potential nominee, Olson would offer Democrats a nominee who would not undermine the recent justice advances the Court has made through its marriage decisions, and one who would defend constitutional rights even when unpopular in some conservative circles.
Olson is also eminently acceptable to Republicans. Who on the Republican side could turn down a former Assistant Attorney General for Reagan’s Office of Legal Counsel, the former Solicitor General of the United States under President George W. Bush, a founding member of the Federalist Society (along with Justice Scalia), and lead counsel for Bush in Bush v. Gore? Who on the Republican side can reasonably oppose someone who crusaded against the Clinton Administration, is staunchly pro-life, and has long advanced strict constructionism of the Constitution—the foundation for many conservative wins at the Court.
Surely, such a nomination could move forward in even a deeply divided Congress—and in fact Olson was rumored to have been one of Bush’s potential nominees.
The passing of Justice Scalia is a sting that the Republican Party and the libertarian movement will feel for some time. Indeed, replacing Scalia is like attempting to fill the shoes of lions of the bench such as Felix Frankfurter, Robert Jackson, or Oliver Wendell Holmes, Jr. No matter what one thinks of Holmes, an ardent progressive, or Scalia, an ardent textual conservative, their influence in American constitutional jurisprudence is nearly unparalleled.
This is a precarious situation for the Republican Party—and our country. To approve of any of the potential liberal nominees that have been rumored would change the ideological makeup of the Court, something the Right has held since the Nixon era. The loss of the Court would be a huge coup against Republicans and a massive boon for the progressive movement in America. Republicans need an acceptable nominee to maintain the current balance on the Court, yet any nominee must also pass muster among Democrats.
And, above all, our nation does not need a divisive nomination battle. Americans need a Congress working again—to forge ahead on accelerating economic growth, creating more jobs, and securing our communities and our nation. Ted Olson’s nomination—a capstone to his historic legal career—would help us do exactly that.
President Obama should not attempt a purely political nomination—to rally voters to the Democrat’s cause in 2016. He has the opportunity, and the responsibility, to deliver on his post-partisan promises—and give our people a nominee worthy of the challenge and of this moment. Yes, he can.