Four Paths Obama Could Take With His Supreme Court Nominee
By many accounts, President Obama hopes to name his choice to succeed the late Justice Antonin Scalia within two weeks, so there is precious little time to speculate about who that nominee may be. There’s also a dauntingly long list of potential nominees. Seven years in the White House, including more than a year when a Democratic Senate could confirm nominees without fear that they would be blocked by a filibuster, enabled Obama to elevate a number of potential justices to lower courts. Additionally, California Gov. Jerry Brown (D) appears to have used his three appointments to his state’s highest court to build a farm team for Democratic presidents looking for a future Supreme Court nominee.
The person the president eventually picks will reveal a great deal about how he plans to confront Senate Majority Leader Mitch McConnell’s (R-KY) plan to block anyone Obama sends up. Below are four potential strategies the White House may deploy. This list is not meant to provide an exhaustive catalog of potential nominees. Many names that have been suggested in the media as possible nominees (Loretta Lynch, Pam Harris, Ketanji Brown Jackson, Pam Karlan, Paul Smith, etc.) are not discussed below.
The Olive Branch
Under ordinary circumstances, if a Supreme Court vacancy opened up at a time when different parties controlled the White House and the Senate, the president might seek out a nominee with broad appeal and a record that points toward moderation. The obvious candidate, if President Obama should seek to go this route, is Judge Sri Srinivasan of the United States Court of Appeals for the DC Circuit. Srinivasan was confirmed 97–0 to his current job on the DC Circuit, which is often viewed as the second most powerful court in the country. Sen. Orrin Hatch (R-UT), a senior Republican on the Judiciary Committee, described Srinivasan as “terrific.”
It’s easy to see why. Srinivasan’s resume is laden with elite credentials — a Supreme Court clerkship, many years of service in the Solicitor General’s office, a partnership in a major DC law firm — that only a handful of lawyers in a generation can hope to assemble together in one lifetime. That resume also includes a number of private sector clients, such as ExxonMobil and former Enron CEO Jeff Skilling, that worry many progressive groups and could lend credence to the notion that Srinivasan will not be a liberal bomb thrower if he joins the Supreme Court. (Srinivasan’s record as a judge, for what it is worth, suggests that he would behave as a mainline Democratic appointee if promoted to the Court.)
Other candidates that might fit the model of a “olive branch” nominee are DC Circuit Judge Patricia Millett, a former top Supreme Court advocate who once defended the conservative Roberts Court against allegations that it has become too reflexively pro-business, and Eleventh Circuit Judge Adalberto José Jordán, a former law clerk to Reagan appointed Justice Sandra Day O’Connor. Republicans, however, are likely to perceive Millett as tainted because she was the first judge confirmed after Senate Democrats invoked the so-called “nuclear option” to bypass the GOP’s efforts to prevent anyone from being confirmed to the DC Circuit. Jordán, meanwhile, could be a risky nomination because his record is far more enigmatic than Srinivasan’s. While Srinivasan’s actions on the bench may give some comfort to White House allies concerned about his record prior to becoming a judge, Jordán’s record offers less clarity on just how far he would depart from the very conservative justice Obama seeks to replace.
Given that Senate Republicans have largely divided into a faction that wants to deny Obama’s nominee a hearing outright and another that plans to reject any nominee who doesn’t hold the same very conservative views as Justice Scalia, it’s unclear what Obama stands to gain by extending an olive branch. Nevertheless, a nominee like Srinivasan could help drive home the magnitude of the Senate’s recalcitrance.
The Conventional Superqualified Nominee
Though the White House has largely been coy about what kind of nominee they will select to replace Scalia, President Obama has emphasized one trait — the nominee will be “an outstanding legal mind” who “indisputably is qualified for the seat.” Whoever the president picks, in other words, it appears he wants to box his opposition into a corner by choosing someone with impressive credentials that will be hard to denounce as unsuited for the nation’s highest court.
Two men with such qualifications who also have resumes in line with what Democratic presidents would normally look for in a Supreme Court justice are Ninth Circuit Judge Paul Watford and California Supreme Court Justice Mariano-Florentino Cuéllar. Of these two, Watford more closely resembles the “olive branch” model of a potential Supreme Court nominee. A former clerk to Reagan-appointed Judge Alex Kozinski and Justice Ruth Bader Ginsburg, Watford worked as a federal prosecutor and as a large law firm partner before President Obama appointed him to his current job. Watford, however, also represented several civil rights groups in an amicus brief challenging Arizona’s anti-immigrant law SB 1070 — a brief that helped earn him the ire of Senate Judiciary Chair Chuck Grassley (R-IA).
Justice Cuéllar, meanwhile, has a more personal stake in how America treats immigrants. A naturalized citizen who was born in Mexico, Cuéllar earned degrees from Yale, Harvard and Stanford before joining Stanford law school’s faculty. During two years in the Obama White House, Cuéllar handled an usually broad portfolio of issues:
In 2009 and 2010, while on leave from Stanford, he worked at the White House as Special Assistant to the President for Justice and Regulatory Policy. He negotiated provisions in food safety, tobacco, and crack-powder cocaine sentencing reform legislation; convened the White House’s food safety working group and coordinated its response to the BP oil spill; set up the President’s Equal Pay Task Force; worked on the bipartisan repeal of the military’s Don’t Ask/Don’t Tell policy; and led efforts to support community-based crime prevention and immigrant integration.
Either Watford or Cuéllar could potentially goad candidates like Donald Trump or Ted Cruz into damaging statements about immigration — without actually having to say a word — if one of them were nominated to the Supreme Court.
Two of Justice Cuéllar colleagues on California’s highest court, Justices Goodwin Liu and Leondra Kruger, also fit the model of conventional Democratic nominees with impressive resumes. Liu, however, fell to a Republican filibuster in 2011 after Obama nominated him to a seat on the Ninth Circuit. Kruger, meanwhile, may be perceived as too young to sit on that nation’s highest court as she is not yet 40 years-old.
The Non-Traditional Resume
The federal judicial selection process is punishing towards lawyers who spend their careers in public interest law. While jobs at a big law firm or in a prosecutor’s office are widely perceived as politically neutral credentials, a career spent representing unions or the ACLU immediately flags an attorney as a liberal and a target for Republicans in the confirmation process. Accordingly, few lawyers with such resumes make it to the federal bench.
An exception to this general rule is Eighth Circuit Judge Jane Kelly. Kelly earned many of the traditional credentials that usher a lawyer into the highest echelons of the legal profession — a Harvard law degree, a circuit court clerkship, her own judgeship. Yet, when most lawyers with similar credentials spend much of their careers earning six or seven figure salaries at a large law firm, Kelly instead spent the bulk of her career as a public defender.
The current vacancy on the Supreme Court, moreover, arises at a time when many Republicans are moving to the left on criminal justice reform. Accordingly, while Kelly’s time as a public defender may have proved a liability at her confirmation hearing ten or twenty years ago, such attacks are increasingly out-of-bounds in the current political environment. That probably won’t stop the most strident voices in the GOP from laying into Judge Kelly, but it is likely that supporters of reform would need to find some other way to go after the former public defender.
Politics aside, Kelly would add a perspective to the Supreme Court that is currently absent. Though Justices Samuel Alito and Sonia Sotomayor both worked as prosecutors, no sitting justice has anywhere near Kelly’s experience in criminal defense work.
The Declaration of War
A final strategy the White House could deploy is to choose a nominee that would most highlight the distinctions between the two parties. The most obvious way to do so would be to nominate DC Circuit Judge Nina Pillard to replace Scalia.
Pillard is the closest thing America has produced to another Justice Ruth Bader Ginsburg. A former Georgetown law professor, litigator in the Solicitor General’s office and attorney with the NAACP Legal Defense Fund, Pillard litigated two of the most important women’s rights decisions of the last two decades. She also produced an unapologetically feminist scholarship as a professor.
In a 2007 article, for example, Judge Pillard questioned the constitutionality of “abstinence-only” curricula that teach gender roles straight out of an episode of Mad Men:
Women, one abstinence-only curriculum teaches, need “financial support,” whereas men need “domestic support” and “admiration. Another maintains that “[w]omen gauge their happiness and judge their success on their relationships. Men’s happiness and success hinge on their accomplishments. Young women, according to a leading abstinence-only curriculum, “care less about achievement and their futures” than do their male peers. These curricula suggest that there are two tracks in sex and two tracks in life, one male, and one female.
This article wound up playing a starring role in Pillard’s confirmation hearing for her current job — Sen. Ted Cruz (R-TX), in particular, falsely attacked her for “arguing that if a state decides to teach abstinence-only, that that decision by state and local officials in your judgment may well be unconstitutional.” (Pillard’s article suggests that some abstinence-only curricula — those that teach “that there are two tracks in sex and two tracks in life, one male, and one female” are unconstitutional — not that all such curricula violate the Constitution.)
In any event, Pillard’s resume, her sex-positive scholarship, and her open support for women’s reproductive freedom will not earn her many friends on the Republican side of the aisle. Nominating her would be an unusually aggressive move by this White House, but it would also be the move most likely to trigger Todd Akin-like statements of disapproval from Senate Republicans.