It’s often overlooked that the assassination attempt against Representative Giffords claimed six lives. And one of those who died — who, it turns out, gave his life protecting others — was Federal Chief Judge John Roll.
And while it might seem crass to bring this up, Roll’s death opens a vacancy on the bench that needs to be filled. Which means that a new judge needs to be nominated by President Obama and confirmed by the Senate.
This raises an interesting political and ethical question: Roll was a Republican, and his term of office was brutally cut short. Does President Obama have some kind of moral obligation to appoint another judge in the same mold?
Of course, legally, he does not. The president’s authority to nominate judges has no Constitutional limits, no requirements for any kind of ideological litmus test or even competence or experience. And the Senate is still Democratically controlled (barely), which means that as long as Obama’s nominee is not too ravingly leftist to trigger a Republican filibuster, he or she should be confirmed.
Traditionally, the president takes “suggestions” from the Senators who represent the district in question. This raises a slight problem for Obama, as the two Senators who represent Roll’s district — the District of Arizona — are Republicans (well, for the most part): John McCain and John Kyl.
And Obama can’t turn to the governor, either. Arizona’s governor, Jan Brewer, is also a Republican — and Obama’s Justice Department is currently suing her and her state over their illegal immigration law.
Obama happens to have Brewer’s Democratic predecessor, Janet Napolitano, as his Secretary of Homeland Security, but consulting with her — at least officially — could be awkward.
The best solution would be to find a relatively apolitical Arizona judge who has respect from both sides, and put him or her up for Roll’s seat.
But that flies in the face of similar examples. For example, when Thurgood Marshall retired from the Supreme Court, President Bush (the first one) was pressured to appoint another black to the seat. Which he did by nominating Clarence Thomas — which still gives the Left hives. And when Sandra Day O’Connor left the bench, the second President Bush was pressed — hard — to name another woman (presumably to keep the money the Court spent on a Justice’s Lady’s Room from going to waste, so to speak) to succeed her. He resisted, tapping Samuel Alito, but President Obama has made up for it by nominating two women at his first two opportunities.
By that argument (championed by Democrats), Judge Roll’s seat should go to a Republican. Especially in light that he didn’t retire or resign in disgrace or even pass away of natural or accidental causes, but was murdered. If it weren’t for the Tucson shooting, he’d still be on the bench today. To nominate a Republican would be to simply continue the way things should have played out.
As I said, I don’t agree with that argument. But it’s certainly consistent with the precedent the Democrats tried to push.
Let’s see if they hold to the same standard when it isn’t to their benefit.