Decision Time: The Pros And Cons Of Obama’s Top Supreme Court Options
President Barack Obama says he intends to forge ahead and name a replacement for deceased Supreme Court Justice Antonin Scalia’s position, despite threats from Republicans to block anybody he tries to nominate. He’ll have no lack of options to choose from.
While many publications have listed nominees Obama may be considering, few have explicitly evaluated the respective pluses and minuses of Obama’s various choices when compared to one another. Sure, Sri Srinivasan is seen as a frontrunner, but why? Should he be?
The Daily Caller News Foundation digs in by evaluating nine different prospective nominees who are frequently listed as potential picks:
1. Sri Srinivasan, judge on D.C. Circuit Court of Appeals
Pros: As an Indian immigrant and a Hindu, Srinivasan would fill a new diversity checkbox for the Court. He has a moderate reputation, having clerked for two Republican judges and worked for the Department of Justice during former President George W. Bush’s administration. He was confirmed 97-0 when nominated to be a circuit court judge, meaning dozens of GOP senators would have to explain why they view him so differently after just three years. Extremely well-qualified by objective measures, with an elite academic pedigree, a stint teaching at Harvard Law School, and substantial time spent in private practice, the executive branch and on the bench. Generally seen as moderate.
Cons: While Srinivasan has diversity appeal, Indian-Americans aren’t a large voting bloc, so the potential electoral advantages that could accrue from Srinivasan being blocked are probably not as great as for other candidates. While his moderate reputation means he may have a better shot at confirmation, it also means he’s less likely to fire up liberal voters if his nomination is blocked. Some may even be outright unhappy that Obama is “wasting” his pick on such a moderate option. Before becoming a judge, Srinivasan was a corporate litigator who represented Exxon and former Enron CEO Jeffrey Skilling, among others, giving Republicans a potentially powerful line of attack.
2. Mariano-Florentino Cuéllar, associate justice of the California Supreme Court
Pros: The Daily Beast has suggested that a Cuéllar nomination would be the GOP’s “worst nightmare” for the Court showdown, and there are several reasons to think they may be correct. Cuéllar is a Mexican immigrant (and would be the first Mexican on the Court), in an election that has revolved heavily around the topic of immigration thanks to the ascendancy of Donald Trump. Democrats could easily exploit a stalled nomination to portray the GOP as hostile to letting a talented Hispanic onto the Court, and use it to rally Hispanic voters in November’s presidential election by portraying the election as a referendum on the Court. Cuéllar was unanimously confirmed to California’s Supreme Court, helping Obama if he hopes to position Cuéllar as a mainstream candidate the GOP is opposing out of sheer obstructionism.
Cuéllar is also a scant 43 years old, meaning he could be a fixture of the Court for an extremely long time if confirmed.
Cons: Any electoral advantage gained by Cuéllar could be mostly or entirely offset if Trump fades away and [crscore]Marco Rubio[/crscore] or [crscore]Ted Cruz[/crscore] land the GOP nomination instead. Due to his exceptional youth and the fact he has only been on the California Supreme Court for a year, the GOP could credibly argue he is too inexperienced to ascend so quickly to country’s top court.
3. Paul Watford, judge for the Ninth Circuit Court of Appeals
Pros: Watford is black, and similar to Cuéllar, his nomination could potentially help to marginally boost turnout in a group Democrats are relying on to keep the White House. Enthusing black voters is particularly important for the party now that Obama isn’t on the ballot. Back when he was nominated to the Ninth Circuit, several conservative legal figures described him as a moderate, which could could improve his chances of actually getting on the Court if Obama intends for his nominee to do that.
Cons: Unlike Srinivasan and some other candidates, Watford’s path to the Court of Appeals was somewhat contentious and he was only confirmed 61-34 by a Democrat-controlled Senate, so Republicans will have a much easier time justifying opposition to him. As an attorney, Watford assisted in cases attacking the death penalty and a tough Arizona anti-illegal immigration law, which will give the GOP plenty of ideological ammunition to throw at him despite his “moderate” label.
4. Loretta Lynch, current U.S. Attorney General
Pros: Lynch would be the first black woman on the Supreme Court, and like Watford, could help to bolster black turnout at least slightly if she is blocked. Lynch is already the veteran of a long, grueling, politically-driven confirmation battle, which she navigated with flying colors; Republicans likely won’t have many new arguments to throw against her.
Cons: As a recent Obama political appointee, Lynch almost certainly couldn’t be successfully presented as a moderate or otherwise apolitical figure. At 56, she is significantly older than other top candidates, meaning that she likely wouldn’t be on the Court as long as some other potential nominees. Lynch has no judicial experience.
5. Jane Kelly, judge for the Eight Circuit Court of Appeals
Pros: Kelly spent the vast majority of her career as a federal public defender, which isn’t prestigious work but is also non-controversial and may allow her to be presented positively as an attorney devoted to public service. Kelly’s nomination for the Eighth Circuit passed unanimously and was enthusiastically backed by Iowa native Sen. Chuck Grassley, who is the chairman of the Senate Judiciary Committee and will likely play a key role in the Republican effort to block an Obama nomination. The GOP may have a tougher time explaining why it opposes Kelly than it would for any other nominee.
Cons: Other than her brief two years on the federal bench, Kelly lacks the high-profile credentials and accomplishments of some other contenders. As a white woman, she doesn’t offer the same diversity dividends as Obama’s various non-white options.
6. Patricia Ann Millett, judge for the D.C. Circuit Court of Appeals
Pros: A woman. Millett has argued 32 cases before the Supreme Court as an appellate lawyer, the second-most of any woman ever. In general, her career has many similarities to that of current Chief Justice John Roberts, making it essentially impossible for Republicans to deem her unqualified. Her husband served in Iraq and Millett has frequently advocated for military families, the sort of activism work that might appeal to Republicans.
Cons: Like Kelly, she doesn’t represent an ethnic “first” for the Court. Her confirmation battle for the D.C. Circuit was a tough one and contributed to Senate Minority Leader [crscore]Harry Reid[/crscore]’s invocation of the “nuclear option” ending non-Supreme Court judicial filibusters, so Republicans won’t have to explain why they suddenly oppose a nominee they once supported.
7. Jacqueline Nguyen, judge for the Ninth Circuit Court of Appeals
Pros: Nguyen would be the first Asian justice, and is also a woman for even more diversity-related firepower. Nguyen has an inspiring life story, arriving in the U.S. at age 10 as a refugee after the fall of South Vietnam. Unlike her colleague Watford, she was easily confirmed by a 91-3 vote. At 50 years old, she is young enough to be on the Court for a long time but not so young as to attract charges of inexperience.
Cons: Nguyen may leave liberals slightly less fired up thanks to an unusual dissent she wrote in 2013 defending a Washington police officer who tased and arrested a man without much of a reason. Of course, that might not really hurt her with Republicans.
8. Merrick Garland, judge for the D.C. Circuit Court of Appeals
Pros: Garland is the oldest major contender, at 63. That may sound like a disadvantage, but if Obama’s top goal is getting a confirmation (as opposed to simply maximizing his political gains) it could be very helpful, as Republicans will be more willing to tolerate a leftward shift of the Court if they suspect the new justice won’t be around for as long. Garland is utterly qualified, having spent nearly 20 years on the D.C. Circuit. His lengthy paper trail includes many moderate signals (in particular, he is very pro-police) that could win over Republicans who are moderate or caught in tough reelection battles.
Cons: Garland is a white male and certainly will not be firing up any voter demographics that Democrats are trying to woo for November. And while his age may be a virtue for confirmation, it’s a con when it comes to leaving a legacy.
9. Pam Karlan, Stanford Law School professor
Pros: As pointed out by Vox, Karlan would function more as a middle finger to the GOP than anything else, but that may be exactly what Obama wants. Karlan is one of the country’s premier liberal legal scholars, a major critic of the Roberts Court, and has even written a book advocating for a “living Constitution.” If nominated, Karlan will be essentially dead on arrival in the Senate, though she’s certainly fired up the party’s left wing (which may need something to bolster their spirits when and if Bernie Sanders finally loses to Hillary Clinton).
But Obama likely isn’t solely concerned with actually replacing Scalia, especially since Republicans are readying for intense opposition. If Obama is convinced that Republicans will vote down any conceivable candidate he presents, he can then start laying the groundwork for a Clinton or Sanders presidency. By using Karlan as a sacrificial lamb, Obama won’t taint any of his more moderate contenders, who could then potentially be nominated and confirmed in 2017 even if Republicans still hold the Senate.
Karlan has another possible advantage. If Democrats win a big victory in November, keeping the White House and retaking the Senate, they could easily renominate Karlan and potentially replace Scalia with an arch-liberal rather than a mere moderate.
Cons: Karlan might just be too liberal for Obama to pull off this gambit. She is openly bisexual and currently has a female partner, and she has a massive paper trail of liberal views on issues like the death penalty and criminal justice, which Republicans generally hold the advantage on with the public. The specter of Karlan actually getting on the Court may motivate the Republican base in November more than it would motivate Democrats.
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