With the sudden demise of Justice Scalia, a new vacancy has opened up on the Supreme Court. With Obama’s term ending soon and election season in full swing, the question of who will fill the seat (and when), already a tense and competitive political game, takes on greater significance than ever before. The stakes could not be higher, as this appointment could set the tone of the Judicial branch of the government for many decades to come, in addition to making an enduring statement on Obama’s legacy as President. Right now, the Court is split 4-4 between Conservatives and Liberals (when he was alive, Scalia was among the Conservatives). This appointment could change everything. Because Republicans argue that the election is too close to confirm a nominee, there is pressure on the President to move quickly.
Traditionally, the President nominates the candidate, who then must face a series of hearings in front of the Senate Judiciary Committee, at which both the nominee and other witnesses make statements and answer questions. The Senate Judiciary Committee then votes to send the nomination to the Senate. Confirmation by the Senate allows the President to formally appoint the candidate to the Supreme Court, where they hold the position until resignation or death.
Usually, Presidents nominate candidates that align with their own political positions, but there is never any guarantee that a Justice will vote along any particular political line, and Presidents and the public have been surprised by decisions from Justices before. And more than just party alignments affect the choice of nominee: today, issues of representation and diversity remain important, and Obama’s legacy (especially in regards to the African-American community in particular) in part reflects this, and will likely impact his choice of nominee.
However, Republicans hold the Senate majority, and can refuse to hold confirmation hearings before the Judiciary Committee or the floor vote on the nominee, effectively killing any effort to replace Scalia until and unless the political dynamic in the country forces Republicans to change their stance and allow the nomination to proceed. A liberal appointee would threaten fundamental conservative legal victories from the past two decades; conversely, denying a liberal justice would allow them to nominate a Republican, and continue the Court’s steady move to the right. Ted Cruz, a thought leader among Republicans regarding the Court, is extremely likely to make this appointment a central issue in his campaign as a result, as well as mounting enormous pressure against proceeding with any nomination. This pressure is likely going to be difficult for Senate Republicans to overcome, even if it would be better politics for them to do so.
Still, there is no precedent for refusing to act on a Supreme Court nomination because of an impending Presidential election, and the Obama administration nominee may well yet receive the vote. Therefore, any vote against the nominee is likely to be on substantive issues, no matter how slight, though with much dragging of the feet, including numerous requests for information, and Senate Republicans voting as a bloc against the nominee. Anything else would threaten the Republican seats in the next election.
Therefore, the Administration needs to pick a nominee who fulfills its political and jurisprudential goals whilst denying Republicans a tool with which to court undecided voters. Many a candidate is sufficiently ideologically progressive enough to meet the Democratic party’s goals, but few also thwart Republican obstructionism and exact political costs on the GOP in the next election. In this, representation politics also play a role, as the Democratic party needs to motivate not only their own voters, but independents; and traditionally, African-American and Hispanic voters trail white voter turn-out. Therefore, the Administration is likely to seek a candidate of a minority background in order to cultivate party loyalty among non-white voters, as well as providing a liberal counterpoint to arch-Conservative (and also Black) Justice Clarence Thomas.
The Constitution does not set any qualifications to serve as a Justice, and so the President can nominate any individual to serve on the Court; but because the individual must receive confirmation of the Senate, the surprises on this front are limited. With special interest groups lobbying senators to confirm or reject a nominee growing ever louder, this decision is consuming as much national attention as the election itself.
So who will fill the seat on the Supreme Court? Here are (in my opinion) the top five contenders.
1. 9th Circuit Judge, Paul Watford
Paul Watford is a previous Obama appointee to the Ninth Circuit, and he is well respected and fairly well known in Democratic legal circles. He was confirmed by the Senate in 2012 by a vote of 61-34, which is a filibuster-proof majority, and includes nine Republicans who voted in his favor. This gives the Administration considerable leverage to argue against Republican intransigence in refusing to process the nomination. In addition, the fact that he was vetted so recently makes him a practical pick for the President, especially considering the end of his term looming close. And as a Black man, this would help the President leave a lasting mark in pushing for inclusion for minorities, particularly African-Americans, in the political process, an especially relevant issue in national discourse today.
Watford has some impressive chops; he was a law clerk to both Judge Alex Kozinski of the 9th Circuit, and for Ruth Bader Ginsburg. In the late 90s, he became an Assistant United States Attorney in the Major Frauds Section of the Criminal Division of the Central District of California, just one year after joining the law firm Munger, Tolles & Olsen. In this position, he prosecuted a wide range of federal criminal cases, including white-collar criminal cases. He worked in Munger as a partner until his confirmation in his current position as a 9th Circuit Judge, where he focused on appellate litigation, appearing often in state and federal courts to argue his cases. He has also authored or edited twenty briefs prepared for the Supreme Court. He wrote the decision of the 9th Circuit’s en banc decision (a term that denotes that the case was heard by the full bench, rather than a panel selected from them, and used for cases of unusual complexity or great importance) in City of Los Angeles v. Patel (2014), in which the court struck down, 7-4, a city ordinance that authorized police to conduct surprise inspections of hotel and motel guest registries without obtaining the owners’ consent or a search warrant. Watford, in writing for the court, held that the ordinance therefore violated the Fourth Amendment because it didn’t allow for a pre-compliance review. This decision was upheld by the U.S. Supreme Court a year later, 5-4.
Watford has intimate knowledge of the judicial process, including the Supreme Court, making him a strong contender indeed, all the more so because of his support enjoyed across the political spectrum, including some prominent conservative legal figures such as Orin Kerr and Eugene Volokh. This has the added benefit of making any Republican obstructionism against his nomination appear churlish and ill-founded.
- Attorney General Loretta Lynch
Loretta Lynch is known and admired with the administration, and her history as a career prosecutor makes it difficult to paint her as excessively liberal, an essential sticking point in winning over any Republican support in the Senate. She too has been vetted recently for her position as Attorney General, and as with Paul Watford, this would allow the President to nominate her in short order. However, eight Republicans on the Senate Judiciary Committee, including Chairman Chuck Grassley, opposed her confirmation after a record-long delay. Her nomination process was one of the longest in U.S. history, taking 166 days from when she was first nominated. She simply does not command the bi-partisan support that Watford does, and this could delay her appointment were the President to nominate her. Yet, as a Black woman, she would motivate both Black and female voters in favor of the Democratic party with the election right around the corner, and gives her an edge over Paul Watford.
Lynch is an impressive candidate. Before her current appointment as Attorney General of the United States, she served as US Attorney for the Eastern District of New York, where she oversaw federal prosecutions in Brooklyn, Queens, Staten Island, and Long Island. She has worked both for the US government as well as private practice, first working as a federal prosecutor in 1990, and has worked on several political corruption cases. As US Attorney, Lynch oversaw prosecution of the New York City police officers in the Abner Louima case (1997), where they had sexually violated and abused Abner, a Black Haitian man they falsely accused of harassing a police officer. Following the July 2014 death of Eric Garner, an unarmed Black man who died after being held in a department-prohibited chokehold by a New York City police officer, Lynch agreed to meet with his family to discuss possible federal prosecution of the officer involved.
Lynch’s office also investigated Citigroup over mortgage securities sold by the bank, resulting in a $7 billion settlement, and was involved in the $1.2 billion settlement with HSBC over violations of the Bank Secrecy Act. She supervised the investigation into senior FIFA officials, which culminated in the indictment of 14 senior FIFA officials and executives for corruption soon after she was confirmed as Attorney General in 2015.
While clearly a striking candidate with strong progressive appeal, her noted (and recent) lack of bipartisan appeal might hinder her confirmation as a Justice.
- Judge Sri Srinivasan
Sri Srinivasan was confirmed unanimously in his appointment in the U.S. Court of Appeals for the D.C. Circuit. He has formerly worked in BigLaw and in the U.S. Solicitor General’s office in both Republican and Democratic administrations, making him a candidate with bipartisan appeal, though perhaps not as much as he needs to land the nomination. If he got it, he would be the first Asian-American on the Court, as he is from India.
He has written numerous court papers, including Pom Wonderful v. FTC (2015), which upheld FTC regulations that require health-related advertising claims to be supported by clinical studies while simultaneously trimming the number of studies required on First Amendment grounds, the D.C. Circuit’s decision reinstating regulations that guarantee overtime and minimum wage protection to home health care workers in Home Care Association of America v. Weil (2015), and the D.C. Court’s decision in Simon v. Republic Hungary (2016), holding that Article 27 of the Foreign Sovereign Immunities Act merely creates a floor on compensation for Holocaust survivors, with no cap, because the text of the 1947 Peace Treaty between Hungary and the Allies does not bar claims outside the treaty, and the Allies lack the power to eliminate claims of Hungary’s own citizens against their government.
He earned his progressive credentials when he did pro-bono work for Presidential candidate Al Gore during the aftermath of the 2000 election, and in 2013, he was part of the legal team that presented arguments before the Supreme Court against the Defense of Marriage Act in the case of United States v. Windsor. However, in 2010 when his name came up as one of the possible candidates for one of two vacancies on the U.S. Court of Appeals for the D.C. Circuit, there was some opposition among Democrats due to his work in the US Solicitor General’s office during the Bush administration, and because of union animosity to his corporate clients from his private practice. Furthermore, when he worked as a law clerk for the U.S. Court of Appeals for the Fourth Circuit, he did so under Judge J. Harvie Wilkinson III and for Supreme Court Justice Sandra Day O’Connor, both well-known conservatives. Still, in 2012 Obama nominated him to the seat, to which he was eventually confirmed, 97-0.
Srinivasan is an impressive and thorough legalist who is widely respected and admired, and he is moderate enough to potentially sway moderate Republicans, though he lacks the unblemished progressive record of Lynch. But as a non-Black male, some speculate that he generates relatively less political advantage in the upcoming election among interest groups in comparison to a female, Black candidate.
- Chief Judge Merrick Garland
Merrick Garland would be one of two “safety” nominees. Currently the chief judge on the D.C. Circuit, he was a former high-ranking Justice Department official whose name had previously been considered for a Supreme Court seat back when Justice Paul Stevens retired in 2010. Picking Merrick Garland would be an appeal to moderate Senate Republicans, rather than a keynote of Obama’s progressive legacy.
Garland himself has an impressive track-record. He was Special Assistant to the Attorney General of the United States from 1979-1981, then joined the law firm of Arnold & Porter where he was a partner from 1985-1989, and 1992-1993, in between which he served as an Assistant U.S. Attorney for D.C. from 1989-1992. He was also Deputy Assistant Attorney General in the Criminal Division of the U.S. Department of Justice from 1993-1994, after which he served as Principal Associate Deputy Attorney General until his appointment as a U.S. Circuit Judge. During this time he supervised the Oklahoma City bombing and UNABOM prosecutions.
He was nominated by then-President Bill Clinton to the D.C. Circuit, but his nomination languished under the Republican-controlled Senate until after the 1996 election – a fate which might repeat itself, though under a different set of objections.
However, Garland is a judicial moderate, and while he may not be the most progressive of candidates, his moderation might make him the most likely to secure the nomination in the face of Republican obstruction.
- Judge Jane Kelly
Jane Kelly, who serves as judge on the 8th Circuit, would also be a fairly safe candidate. She is a moderate public defender from Iowa who graduated from Harvard Law in Obama’s class, and is well-admired by Sen. Chuck Grassley (R-Iowa), who chairs the Senate Judiciary Committee. Choosing Jane Kelly would not alienate Republicans, and would be a clear signal that Obama more prioritizes preventing an arch-Conservative from getting the seat and securing it quickly than about his legacy as President.
She began her legal career as a clerk to Donald Porter, and then David R. Hansen, before teaching at the University of Illinois College of Law as a visiting instructor. From 1994-2013, she served both as Assistant Federal Public Defender, and from 1999, as Supervising Attorney as well in the Federal Public Defender’s Office in the Northern District of Iowa.
In June 2014, the 8th Circuit ruled that Minneapolis police officers were entitled to qualified immunity after a suspect’s death in a taser incident during an arrest. She was one of the three judges on the panel of the court, and the decision noted that police force used was reasonable under the circumstances. Considering the current discourse among Democrats about the use of police force, this decision might make her a less favored candidate in comparison to some other more progressive candidates on this list.
However, in 2013, President Obama nominated Kelly to a post on the U.S. Court of Appeals for the 8th Circuit upon the vacancy of the seat when Michael Melloy retired. She was rated as Unanimously Qualified by the American Bar Association, and was confirmed by the Senate with a vote of 96-0. Clearly, she has strong bi-partisan appeal, and is a serious contender because of it.
But what does this all mean for the Jews? Well, that depends. Pretty much nothing if you’re Israeli, or simply not American. For those primarily concerned with Israel, the actions of the Supreme Court matter little anyway. But for those also concerned about domestic issues, including freedom of religion, censorship, women’s health issues, and information privacy, there is much to pay attention to here, as there would be for any American. In this, the needs of the Jewish-American community are not particularly different from the needs of Americans overall. Perhaps that should give us something else to think about as we wait for President Obama to decide his nominee.
A version of this article first appeared on Enky, and can be read here.