AP Photo/Carolyn Kaster
With the unexpected death of Supreme Court Justice Antonin Scalia, President Barack Obama now has a series of choices to make about how to fill the empty seat on the bench, as he faces unprecedented Senate opposition to naming a replacement in an election year. He could pick a centrist nominee who would be easily confirmable by a GOP-controlled Senate in an ordinary year—though this year is hardly shaping up as ordinary. He could shoot for the moon and select a liberal dream candidate. This person might well become a high-profile sacrificial lamb whose rejection could rally the Democratic base for the coming presidential election. Or Obama could defy partisan lines and go with a nominee he might consider a reasonable conservative, magnanimously opting to keep the court functioning rather than deadlocked with eight members. The White House has not floated any trial balloons, but the legal community can’t help but wildly speculate about whom Obama might pick. Based on some of that speculation, here’s a list of possible candidates for all of those scenarios.
The Centrists:
Padmanabhan Srikanth Srinivasan: The 48-year-old Indian immigrant is at the top of everyone’s list as a likely Scalia replacement, if for no other reason than that the Senate confirmed him unanimously in 2013 to a seat on the US Court of Appeals for the DC Circuit. Senate Republicans would be hard-pressed to explain why a guy who was qualified for the federal judiciary three years ago shouldn’t be confirmed as a Supreme Court justice. Srinivasan served as the principal deputy solicitor general before becoming a judge, and he has argued more than two dozen cases before the Supreme Court. As a private attorney, he often represented business interests. He graduated from Stanford Law School, which would add some West Coast sensibility to the court. He also happened to clerk for Justice Sandra Day O’Connor, a Republican appointee, and for federal appeals court Judge Harvie Wilkinson III, a well-regarded, thoughtful conservative. That Wilkinson clerkship may help explain Srinivasan’s previous support among Republicans in the Senate.
Patricia Ann Millett: The number of women who have argued a significant number of Supreme Court cases is small. That’s part of what makes Millett, 51, a solid potential nominee for Obama. She is now a judge with Srinivasan on the DC Circuit. But she spent many years during the Bill Clinton and George W. Bush administrations working at the solicitor general’s office. Then she spent nine years as a corporate lawyer. All told, she argued 32 cases before the Supreme Court before Obama appointed her to the bench in 2013. She could be the first blogger nominated to the Supreme Court. Millett is a contributor to SCOTUSblog, the court-watching publication founded by one of her longtime colleagues, Tom Goldstein. Millett is a military spouse who raised two young children while working; in 2004, her husband was deployed to Kuwait for nine months. Given that the other two women Obama appointed to the court are single and childless, it might be appealing to see someone join the court with work-family juggling experience. Millett also has a second-degree black belt in tae kwon do, which might come in handy during Senate confirmation hearings.
Loretta Lynch: Currently the US attorney general, Lynch could make history by becoming the first African American woman on the Supreme Court. The daughter of a Baptist minister who has devoted many pro bono hours to helping Rwanda prosecute people for genocide, she’s an attractive candidate for Obama, who’s taken heat from African Americans for not doing enough to fight for their issues during his presidency. A Harvard Law grad, Lynch has extensive experience as a federal prosecutor in New York, handling the prosecution of several public officials and other high-profile cases. She has already survived one confirmation by a Republican Congress.
The Dream Candidates:
Tom Perez: Before becoming the labor secretary, Perez headed the civil rights division of Obama’s Justice Department, where he focused on reforming abusive police departments even before the high-profile police killing of Michael Brown in Ferguson, Missouri. Perez also made serious headway in fighting for the right of the elderly and intellectually disabled people to live outside of institutions. He has experience in elected local politics, having served as the first Latino elected to the governing council in Montgomery County, Maryland. He also understands the inner workings of Congress. Like Justice Stephen Breyer, he worked as an adviser to the late Sen. Edward Kennedy (D-Mass.). He’s young enough, at 54, and would bring experience to the court that it’s seriously lacking.
Neal Katyal: A former principal deputy solicitor general, Katyal has reportedly argued more Supreme Court cases than any other minority lawyer since Thurgood Marshall. Born in Chicago to Indian immigrant parents, Katyal first made headlines by successfully challenging the George W. Bush administration’s war on terror before the Supreme Court by successfully representing Guantanamo detainees who were opposing military commissions. And as a Justice Department lawyer, Katyal also successfully defended an attack on the Voting Rights Act. (This was before the Supreme Court significantly weakened that law.) At 45, he has youth going for him. He has also appeared on House of Cards (playing himself), and his brother-in-law is the prominent legal commentator Jeffrey Rosen.
Debo Adegbile: If Obama really wants to poke Ted Cruz in the eye, he would nominate Adegbile. The Senate refused to confirm him as assistant attorney general for civil rights in 2014, citing his work on behalf of Mumia Abu-Jamal, the controversial inmate convicted of killing a Philadelpia cop. Adegbile had filed an amicus brief suggesting that racial bias had infected the jury selection in Abu-Jamal’s case. Adegbile is the most likely candidate to follow in Thurgood Marshall’s footsteps, having worked for more than a decade at Marshall’s old stomping grounds, the NAACP Legal Defense Fund. Adegbile tried to save the Voting Rights Act in the landmark case Shelby County v. Holder, but the Supreme Court, with Scalia in the majority, ended up obliterating a big section of the law.
Dawn Johnsen: Obama chose Johnsen to head the Justice Department’s Office of Legal Counsel before he took office in 2009. But Republicans in the Senate blocked her confirmation on the grounds that she had been too critical of the OLC in the George W. Bush years, when the office drafted memos justifying torture. Years ago, Johnsen worked at the American Civil Liberties Union and NARAL Pro-Choice America, résumé entries that now read like death sentences for judicial nominees. But she also spent many years working in the Justice Department during the Clinton administration. An expert in constitutional law, Johnsen has been a law professor at Indiana University since 1998. She might be the anti-Scalia, and feminists would pop a few corks at her nomination.
The Conservatives:
Jeffrey Sutton: A judge on the 6th Circuit Court of Appeals who clerked for Scalia at the Supreme Court, Sutton is definitely a conservative. But he’s not an ideologue, having shown some independence in his jurisprudence. He did write the circuit’s opinion upholding same-sex marriage bans, in opposition to most other federal courts. But he was also the first Republican-appointed judge to uphold the individual mandate in the Affordable Care Act. Sutton was born in Saudi Arabia and raised in Ohio, where he also went to law school, which would add a taste of the Midwest to the bench that’s missing now.
Michael McConnell: Now an academic in charge of the Stanford Law School’s Constitutional Law Center, McConnell spent seven years on the 10th Circuit Court of Appeals, appointed by President George W. Bush. A Kentucky native, he was a contender for the Supreme Court during the Bush administration but got edged out by John Roberts. McConnell is a conservative—and related to Senate Majority Leader Mitch McConnell (R-Ky.)—but like Sutton, he’s not an ideologue. He was critical of the Supreme Court’s ruling in Bush v. Gore and also of Congress’s impeachment proceedings against President Bill Clinton. McConnell’s real specialty is religion and the separation of church and state, and he’s eschewed extremism in such cases. And he and Obama have some history. After Obama graduated Harvard law school, McConnell brought him on as a fellow at the University of Chicago law school, where he was then teaching. McConnell had been impressed by how Obama had edited an article McConnell had written for the Harvard Law Review.
Paul Clement: The US solicitor general under George W. Bush and a former Scalia clerk, Clement is indisputably brilliant and has argued 80 cases before the Supreme Court. More than one liberal reporter in the Supreme Court press pool has been known to swoon over Clement’s courtroom command during oral arguments. He has argued against several of Obama’s signature laws, including the Affordable Care Act. Clement was a key figure in the fight to retain bans on same-sex marriage and represented Hobby Lobby in that now-infamous religious freedom case. So he may well be too conservative for a conservative pick. But there’s no mistaking his brain power. A Clement nomination would certainly be a gift from Obama to his political foes.
Ultimately, what makes choosing a nominee particularly tough for Obama is that there’s no telling how deep GOP obstructionism is. Are the Republicans truly bent on denying Obama the chance to nominate anybody? Will they not give a hearing to a centrist or a conservative nominee? The president will have to determine whether to make a symbolic pick for political gain or a realistic one to keep this part of the government working. And who knows which one will drive the Republicans crazier?
