Obama's Supreme Court Shortlist

By Dahlia Lithwick, Slate

14 February 16

 

It would be ridiculous for Republicans to oppose these perfectly qualified candidates.

ong before anybody is ready to think about it, names are already being floated for President Obama’s shortlist for the Supreme Court seat that is vacant following the death of Justice Antonin Scalia this weekend.

As more than one court-watcher has already noted, this assumes that Obama could get anyone confirmed before a new president is elected and sworn into office, which is in grievous doubt. Republicans made it known, even before the rumors of Scalia’s death were confirmed, that they would block any candidate put forward by the president, regardless of who that may be.

The White House has already pledged to nominate a replacement. “I plan to fulfill my constitutional responsibilities to nominate a successor in due time,” Obama said in a statement on Saturday following news of Scalia’s death. “There will be plenty of time for me to do so and for the Senate to fulfill its responsibility to give that person a fair hearing and timely vote.” Not surprisingly, names of potential nominees are already being bandied about. As Jeffrey Toobin noted in a 2014 New Yorker survey of the growing farm team of Obama-appointed judicial talent, the list of his previous appointees on lower courts who have already made a name for themselves on those courts is impressive.

Here’s a rundown of some of the top contenders for a potential nomination (if not an actual confirmation by the Republican-held Senate):

Sri Srinivasan (District of Columbia Circuit Court of Appeals): Age: 48. A strong candidate. The son of immigrants from India, he clerked for conservative appeals court judge J. Harvie Wilkinson III—himself a former shortlister for a Supreme Court seat—and Sandra Day O’Connor. He served as chief deputy to the U.S. solicitor general. He also won confirmation to the D.C. Circuit in 2013 by a staggering vote of 97–0. Srinivasan is a respected judge and a D.C. insider. Blocking him after that confirmation vote might look awful.

Patricia Ann Millett (D.C. Circuit Court of Appeals): Age: 52.* Millett is a legend in Supreme Court advocacy, having argued 32 cases at the high court. She is a consummate SCOTUS insider, in the vein of John Roberts. She is also married to a military reservist and has been a strong supporter of military families. Millett is nobody’s bomb thrower. 

Paul Watford (9th U.S. Circuit Court of Appeals): Age: 48. Watford is a black American who clerked for conservative icon Alex Kozinski as well as for Justice Ruth Bader Ginsburg. He has served as a federal prosecutor and was confirmed in 2012 by a vote of 61–34.

Merrick Garland (D.C. Circuit Court of Appeals): Age: 63. Garland, the chief judge of the D.C. Circuit Court of Appeals, was a Bill Clinton nominee and has long been seen as a judicial moderate who might be confirmable in a contentious political climate. His age may prove disqualifying, but he is a centrist and well-liked.

Goodwin Liu (California Supreme Court): Age: 45. The son of Taiwanese immigrants, Liu was an Obama pick for a seat on the 9th Circuit in 2010 but was blocked by Republicans. He has distinguished himself as a left-leaning moderate on California’s high court. Given his prior confirmation battles, this would be an especially heavy lift.

David Barron (1st U.S. Circuit Court of Appeals): Age: 48. Barron served as acting assistant attorney general in the Obama administration. He controversially authored secret memos on the legality of killing American citizens with drone strikes. His confirmation to the 1st Circuit was controversial, and he would face a steeper climb to the high court if nominated by Obama.

Loretta Lynch (attorney general of the United States): Age: 56. Lynch is the first black woman to hold the AG’s office. She has also served as United States attorney for the Eastern District of New York. During the five long months of her confirmation battle, even Rudy Giuliani called her “overqualified” for the job. Lynch has an undergraduate and a law degree from Harvard University. Given how polarizing she has been as AG, this may be a tough fight for the President.

Jane Kelly (8th U.S. Circuit Court of Appeals): Age: 51. Kelly was a career public defender who had the support of Iowa Republican Chuck Grassley, head of the Senate Judiciary Committee. (Grassley has already called for delaying any nomination.) Kelly was confirmed 96–0 for her seat on the 8th Circuit. Again, it's hard to imagine why anyone would object to her now.

Kamala Harris (attorney general of California): Age: 51. She is the first female and the first black AG of her state. She also has run for elected office. We have not seen a justice with such political experience since Sandra Day O’Connor. Harris has the advantage of being a politician. She also has the disadvantage of being a politician.

Jacqueline Nguyen (9th U.S. Circuit Court of Appeals): Age: 51. She was born in Vietnam and moved to the United States when she was 10. She has served as an assistant U.S. attorney in the Central District of California and in the U.S. attorney's office. She was confirmed to the district court in 2009 with a 97–0 vote.

Robert L. Wilkins (D.C. Circuit Court of Appeals): Age: 53. Wilkins, a black American who was raised by a single mom, has a law degree from Harvard Law School and served as special litigation chief for the D.C. Public Defender Service. Wilkins gained attention for civil rights battles he has waged, including a precedent-setting fight against police racial profiling in Maryland, and for his work on the National Museum of African American History and Culture.

There are heaps more perfectly qualified options of course. (I will think of them as soon as this piece is published.) Pam Karlan, Nina Pillard, Deval Patrick, Steve Bright … At this point, everyone on this list may be a long shot, but all would also be worth fighting for. Antonin Scalia was a conservative legend. Many of the folks listed here would be the same kind of legend on the left. And, yes, there are a lot of extraordinary women and minorities on this list. And, yes, there should be.

Of course, Twitter is a-flutter with all kinds of great ideas for out-of-the-box candidates that Obama might put forth, ranging from Ted Cruz to Joe Biden to, well, Obama himself. One suspects that in light of the current impulse to block anyone Obama may appoint, that latter idea is not going to have a lot of traction.