President Obama now faces a critically important choice as he decides whom to nominate to replace Justice Antonin Scalia. Despite the wishes of Senate Majority Leader Mitch McConnell, who proclaimed mere hours after Scalia’s death was reported that the “vacancy should not be filled until we have a new president,” Obama will certainly make a nomination and invest significant time and effort in pushing for his or her confirmation. No doubt, successfully placing a new justice on the Court will be a tall order. The Republicans hold a solid majority in the Senate and face enormous political pressure from their conservative constituents to preserve an appointment for a future Republican president. As Alec MacGillis recently described, McConnell “felt compelled to get out in front of the base’s ire over the Scalia replacement to avoid a later challenge to his leadership perch.” Now, in an open letter to McConnell, Republicans on the Senate Judiciary Committee have vowed to deny the new nominee so much as a hearing.
Nevertheless, Obama’s choice is consequential. To begin with, there remains a small chance his pick will actually assume a place on the nation’s highest court. But perhaps more importantly given the uphill battle to achieve that result, Obama’s nominee has the potential to secure significant political gain for the Democrats in this highly contentious election year. Republican intransigence is a given, but the unprecedented opposition to any nominee could significantly aid a Democratic presidential nominee this fall and enhance the chances of confirming a liberal nominee in the next administration. Thus, the politics of Obama’s choice dictate a nominee who is objectively unobjectionable and demographically aligned with the Democratic base with an eye to boosting turnout in November. To this end, it is highly likely the nominee will be a circuit court judge confirmed by an overwhelming vote, who holds sterling academic credentials and moderately liberal views, who is without any perceived controversial past, who is young (but not too young), and who is either a woman or a racial minority.
In a series of articles, Supreme Court advocate and founder of SCOTUSblog Tom Goldstein laid out a more singular vision for what Obama will seek in a nominee:
I think the president will have a material preference for this appointee to be black…Blacks already voted in a higher proportion than whites in 2012. But without Barack Obama on the ticket, that number naturally would go down. And because blacks are such reliable Democratic voters, each percentage point in black participation is very important to the victory of a Democratic candidate.
This analysis lead Goldstein to initially predict Ninth Circuit Judge Paul Watford would be nominated, then hypothesize it would be Attorney General Loretta Lynch, before finally resting on Washington, D.C. District Judge Ketanji Brown Jackson as the choice. While the black vote is undoubtedly crucial to Democratic prospects (each of these three distinguished lawyers is African-American), Goldstein’s demographic assumption is a bit too narrow. The political stakes of this Supreme Court pick are far greater than a simple exercise in micro targeting. Obama’s task will be to tap a jurist attractive to the Democratic base but without shifting the debate from Republican intransigence to some perceived inadequacy of the nominee. An African-American nominee is an enticing prospect for Democrats, but it is inconceivable that Obama will make his choice on that ground alone without also insulating himself from attack as much as possible. Here, then, is a brief description of why each of the factors articulated above are indispensable, followed by a short list of candidates who fit the bill.
In this election year, with Senate Republicans committed to portraying any nominee as a leftist radical, it is imperative that Obama removes any basis for opposition that the mainstream press could portray as reasonable. For this reason, Obama will not choose this moment to deviate from the current pattern of nominating an active judge on one of the federal courts of appeal. The federal government’s ninety-four judicial districts are grouped into eleven regional circuits, plus one for the District of Columbia and another for specialized cases such as those involving patents (the Federal Circuit). While there is no requirement that a Supreme Court appointee come from the courts of appeal (indeed there is no requirement that a justice even be a lawyer), these judges hear appeals of lower court decisions in much the same way that the Supreme Court does. In other words, serving on a federal circuit court has long been seen as the best preparation to be a Supreme Court justice.
In recent decades, as nominations have gotten more contentious, presidents have relied heavily on circuit judges to provide political cover for their pick’s credentials. All members but one of the current Court (as well as Justice Scalia) served as federal appeals judges immediately prior to their elevation to the Supreme Court. The one exception was Obama’s last pick, Justice Elena Kagan, who served as Dean of Harvard Law School and then as U.S. Solicitor General prior to her selection. Justice Kagan, however, ran into meaningful opposition over her lack of judicial experience despite overwhelming academic credentials and a year as the Government’s top lawyer before the Supreme Court. Now with a dozen more Republicans in the Senate than at the time of her confirmation, it is unlikely that Obama will want to expend energy explaining why a non-judicial background qualifies his nominee to be one of the country’s most important judges. This pick, then, is not the time for distinguished Supreme Court advocates such as Donald Verrilli and Neal Katyal. For the same reason, Obama will likely fall back on a judge from an elite university and/or one with a sterling federal clerkship. This has been the strong current trend; every justice currently on the court attended either Harvard or Yale law schools.
In addition, it will be all too tempting for Obama to nominate a circuit court judge who was previously confirmed overwhelmingly, if not unanimously, by the Senate in order to use that support as a cudgel with which to beat the opposition party. A message of hypocrisy is easily digestible for the public and the most powerful tool Obama has for cajoling Republicans to actually support the nominee. In some cases, a Republican Senator has vocally advocated for an Obama appointee in their home state, and those past words of praise could prove crucial in the coming war.
Additionally, Obama will undoubtedly pick an ideological ally, but this pick must also be a moderate one. The President’s supporters must be able to rally behind the nominee, but at the same time, Obama must make absolutely sure there are no past votes or statements that could reasonably construed as radical by the Republican Senate majority. That means even as clear a middle-of-the-road choice as Justice Sonia Sotomayor was in 2009 is off the table. There can be no “wise Latina” moments this time around (no matter how unfair that whole episode was).
Next is the eternal Supreme Court consideration—age. With lifetime appointments, every President wants a nominee who will serve for decades, both to leave a lasting legacy and to prevent another confirmation battle in the near future. Ideological compromise is necessary, but it is unlikely that Obama would compromise on age by nominating someone in their sixties. At the same time, a judge in their mid-forties is too open to criticism as being insufficiently experienced for the job. Thus, it seems probable the nominee will have been born in the 1960s, placing them within the narrow range from 47 to 56.
Finally, only after sifting every potential pick through these filters can we get to Goldstein’s number one criterion. There is no question Obama would like to appeal to swing voters and energize core Democratic constituencies. For this reason, choosing a woman, an African-American, a Latino, or an Asian-American would be ideal. The demonization of an African-American nominee in particular, just as the first black president is leaving office, could galvanize black voters, a traditionally lower-turnout group. There is already talk within the black community that the unprecedented vow to block Obama’s appointee even before he has submitted a name to the Senate is racially motivated. Choosing another Hispanic justice, after adding Sotomayor to the Court, could help put the final flourish on Republican efforts to alienate that entire voting bloc. And the prospect of a Donald Trump nomination only increases the political benefits of nominating a highly qualified woman.
Applying each of these criteria, Goldstein’s three suggestions seem somewhat implausible. Attorney General Lynch has never served as a judge, is currently serving in a political position, and attracted strong opposition when her nomination for her current post was submitted to the Senate. Judge Jackson, although a Harvard educated, former Supreme Court clerk and a respected judge on the D.C. District Court, is just forty-five years old and has served only on a lower court for fewer than three years. Judge Watford is a more likely choice, but he, too, is in his mid-forties and received noteworthy Republican opposition when nominated to the Ninth Circuit.
Others have speculated that the “filibuster three”—D.C. Circuit Judges Robert Wilkins, Nina Pillard, and Patricia Ann Millet—are likely nominees. Though they certainly will be considered for future openings, these judges were confirmed only after then Senate Majority Leader Harry Reid went nuclear and eliminated the judicial filibuster when Republicans refused to hold votes on their nominations (supposedly because the current court was “underworked,” despite three vacancies). They took their seats after narrow, party-line votes. In the current climate, their selections would shift the debate to Democratic elimination of lower-court judicial filibusters.
Here, then, is the likely universe of candidates. One of the following seven judges should be the nominee:
Sri Srinivasan: Judge on the District of Columbia Circuit since 2013. Judge Srinivasan, born in 1967, was appointed by President Obama and confirmed by a vote of 97-0. Senator Ted Cruz counts him as a long-time friend. His academic and professional credentials are sterling and centrist. He holds bachelors and law degrees from Stanford, clerked for conservative Judge Harvey Wilkinson and moderate former Supreme Court Justice Sandra Day O’Connor, served as Assistant to the Solicitor General, and argued numerous cases before the Supreme Court on behalf of both the Government and private clients. Judge Srinivasan is also an Indian-American and would be the first Hindu to ever serve on the Court.
Raymond Lohier, Jr.: Judge on the Second Circuit (New York) since 2010. Judge Lohier, born in 1965, was appointed by President Obama and confirmed by a vote of 92-0. He is a graduate of Harvard College and NYU Law School and had a distinguished career at both an elite law firm and as a federal prosecutor before joining the federal bench. Judge Lohier is also African-American.
Albert Diaz: Judge on the Fourth Circuit (Charlotte) since 2010. Judge Diaz, born in 1960, was appointed by President Obama and confirmed by a voice vote (unanimous). He attended the University of Pennsylvania and NYU Law School, served in the Marine Corps, and worked as a state court and military judge before joining the federal appeals court. Like Justice Sotomayor, Judge Diaz is a New Yorker of Puerto Rican heritage.
Jane Kelly: Judge on the Eighth Circuit (Cedar Rapids, IA) since 2013. Judge Kelly, born in 1964, was appointed by President Obama and confirmed by a vote of 96-0. During her confirmation hearing, she was warmly supported by fellow-Iowan and current Senate Judiciary Committee Chairman Charles Grassley. Her unanimous tally includes all of the current Republicans up for reelection in swing states (Ayotte, Burr, Johnson, Kirk, Portman, and Toomey), the remaining Senator-Presidential Candidates (Rubio and Cruz), and the Republican leaders (McConnell and Grassley). Judge Kelly attended Harvard College and Duke Law School and clerked for judges on the District Court for South Dakota and the Eight Circuit. Prior to becoming a judge, she worked as a federal public defender.
Jacqueline Nguyen: Judge on the Ninth Circuit (Pasadena, CA) since 2012. Judge Nguyen, born in 1965, was appointed by President Obama and confirmed by a vote of 91-3 (with Sens. McConnell and Rubio voting in favor). She previously served on the Federal District Court for the Central District of California, appointed by President Obama and confirmed by the Senate, 97-0. Judge Nguyen is a Vietnamese-American woman and former federal prosecutor. She attended Occidental College and UCLA Law School.
Adalberto Jordan: Judge on the Eleventh Circuit (Miami) since 2012. Judge Jordan, born in 1961, was appointed by President Obama and confirmed by a vote of 94-5 (with fellow Florida Cuban Senator Rubio voting in favor, along with Sen. McConnell). Judge Jordan was born in Havana, Cuba and moved to the United States as a child. After attending the University of Miami for college and law school, he clerked for Judge Thomas Clark of the Eleventh Circuit and for Justice Sandra O’Connor. After a brief stint in private practice, Judge Jordan worked as an Assistant United States Attorney, rising to be Chief of the Appellate Division. In 1999, President Clinton appointed him to be a District Judge for the Southern District of Florida, and he was confirmed 93-1.
Jill Pryor: Judge on the Eleventh Circuit (Atlanta) since 2014. Judge Pryor, born in 1963, was appointed by President Obama and confirmed by a vote of 97-0 (with Sens. McConnell, Rubio, and Ted Cruz voting “yes”). Judge Pryor is a graduate of Yale Law School and clerked on the Eleventh Circuit for Judge James Edmondson before her career in private practice.
Today, President Obama wrote in a guest post at SCOTUSblog: “A sterling record. A deep respect for the judiciary’s role. An understanding of the way the world really works. That’s what I’m considering as I fulfill my constitutional duty to appoint a judge to our highest court.” All of which is well and good, but among the many candidates who meet these criteria, the President will also insist on a few other, more politically advantageous qualities. With the Senate’s recent actions, he cannot afford to do otherwise.