WASHINGTON — It's an idea sure to give big banks nightmares — Sen. Elizabeth Warren, D-Mass., the scourge of Wall Street, as the next justice of the Supreme Court.
First floated by a Democratic congressman on Monday, the idea has gained steam within progressive ranks as President Obama vowed Wednesday to nominate a successor to the late Justice Antonin Scalia in the next few weeks.
While the move would be polarizing, nominating Warren could make sense for Obama. The former Harvard law school professor is reliably liberal on core issues the president cares about — and her nomination would galvanize the Democratic party.
-
The burgeoning industry has been hoping the Supreme Court would overturn a problematic lower-court ruling, but the unexpected passing of a conservative stalwart makes that outcome less likely.
February 16 -
During an unusually aggressive bout of questioning for Yellen, particularly from a lawmaker generally regarded as supportive of the Fed chair, Warren questioned comments made by Fed General Counsel Scott Alvarez last year raising concerns with aspects of the financial reform law.
February 24 -
In what could be seen as a Nixon-to-China moment, Minneapolis Fed President Neel Kashkari, a former Goldman Sachs executive and one of the architects of Treasury's bailout of the largest banks, said that breaking up the big banks and turning them into public utilities may be the only way to solve "too big to fail."
February 16
A Warren nomination "would all be about the political optics and rally Democrats and the base ahead of the election," said Brian Gardner, an analyst at Keefe, Bruyette & Woods.
At the same time, however, observers agree she has almost zero chance of being confirmed. Senate Majority Leader Mitch McConnell has already said that Republicans will not consider any nominee for the spot, arguing it should be up to the next president to decide. While some political analysts said McConnell might back down from that pledge if Obama made a consensus pick, Warren hardly fits the bill.
Moreover, there are important reasons Obama and Democrats might not even want to put Warren's name in play. For one, if she were confirmed it would open up her Senate seat, allowing it to be filled by an appointment from a Republican governor. Given that Democrats are hoping to pick up enough seats in the election to reclaim the Senate, it's a risk many wouldn't want to take.
"Given how closely the Senate is likely to be, I don't think any Democrat wants to take a chance of losing what is a very safe Senate seat, even for a little while, so I think the politics really work against" Warren being nominated, Gardner said.
Mark Calabria, director of financial regulation studies at the Cato Institute, said Warren has "almost no chance of getting confirmed" as a Supreme Court justice given her progressive views. But, he added, "I wouldn't be surprised if there was a 'draft Warren' campaign."
Rep. Alan Grayson, D-Fla., kicked off that campaign on Monday, writing a
"The President should appoint Warren right now, before the end of this week," Grayson wrote.
Grayson may have his own motivations for suggesting the idea. He is running in a tough Senate primary and is ensnared in controversy after the
Grayson has denied the allegations, but invoking Warren to become the next Supreme Court Justice could be part of a broader calculation to drum up support from progressives.
Since then, a Warren choice has been picked up by others, including the Washington Post on Wednesday, which named her as
Dennis Kelleher, president and chief executive of the public interest group Better Markets, which is allied with Warren on many issues, would not rule the idea out.
"It is not clear that Senator Warren would have more or less of a road block than anyone else given the statements of the Republican majority leader and other Republican senators to ignore the Constitution and not give anyone a consideration for the job," Kelleher said.
He added that a Warren consideration could open up the nomination to a more diverse group of candidates.
"To me, the more interesting thing is it has the potential to open up the discussion about the issues that Supreme Court justices handle, which is to say that social issues seem to get in an inordinate amount of attention with any Supreme Court nominee and economic issues and investor rights issues are always neglected," Kelleher said.
It's also not clear whether Warren would even want the job. While she would have significant influence on the high court, she is already playing an outsize role in the progressive movement, a role she would likely have to relinquish.
"She has much more power in the Senate and much more ability to push public debate than she would at the court," Gardner said. "She doesn't dictate the agenda and she doesn't advance the agenda; she is in more of a responsive and reactionary role."
