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February 14, 2016

Prognosticating SCOTUS possibilities in light of existing politics

One of many reasons last night I first thought of Loretta Lynch as a SCOTUS nominee was because I think that, for both legacy and political reasons, Prez Obama may be very interested in nominating someone who is (1) an African American, and/or (2) a woman, and/or (3) someone who has been already confirmed to a significant federal position by the current GOP-controlled Senate.  The only person who came to mine filling all three of these criteria is current Attorney General Loretta Lynch.

In this lengthy post at SCOTUSblog, Tom Goldstein talks through his thinking on this front and seems to share my view of the key factors political and practical likely to motivate Prez Obama here.  But, seeing some practical problems with nominating AG Lynch, Tom concludes his post stating that "at this point I think that Judge Paul Watford is the most likely candidate."  Especially because I recall Tom being spot-on in a lot of prior SCOTUS nominee predictions in recent years, I am now inclined to view Judge Watford as something of a front-runner now.

Of course, there are any number of other possibilities, and here are some helpful "short-list" articles from various thoughtful court-watchers worth checking out: from Josh Gerstein at Politico; from Dahlia Lithwick at Slate; from Dylann Mathews at Vox.  After reviewing these lists, I see two additional candidates who (like Judge Watford) satisfy two of the three criteria I have listed at the outset of this post and who, in my view, have some other possible political/diversity benefits.  Here are their names and backgrounds via the Vox piece:

Jane Kelly — US Court of Appeals for the Eighth Circuit

Any nominee is going to have to go through the Judiciary Committee, chaired by Sen. Chuck Grassley (R-IA). And no nominee is going to make Grassley happier than Jane Kelly, a career public defender from Iowa whose nomination for the federal bench Grassley championed, leading to a unanimous confirmation in 2013. She was also, coincidentally, a Harvard Law School classmate of Barack Obama's, graduating with him in 1991.

Her record as a defense attorney might spark some objections from law-and-order-oriented conservatives in the Senate, but it's hard to argue she lacks empathy for victims of crime. In 2004, while jogging, she was tackled and beaten by a male stranger, requiring months of recovery before returning to her practice.

None of this guarantees she will be confirmed. But if Kelly is not confirmable, it's hard to imagine anyone is.

Jacqueline Nguyen — US Court of Appeals for the Ninth Circuit

By contrast, Watford's colleague Nguyen — who was born in Vietnam and would be the first Asian-American justice — was confirmed the same month as him in 2012, by a whopping 91-to-3 margin. She's also a UCLA Law alum, and is only 50, meaning she'd have a nice long tenure.  She got some criticism from liberals for filing a lone dissent defending a police officer who tased an innocent bystander, but if anything that should help her win over Republican votes.  She also is far better versed in hovercraft moose-hunting jurisprudence than any other SCOTUS contender.

But Nguyen is also, for better or worse, a bit of a blank slate without that many major decisions on her record (with a possible exception being a First Amendment case where she and two Republican colleagues found a school uniform policy unconstitutional). That makes it hard to judge what kind of justice she'd be, which could make both Obama and the Senate more hesitant.

The fact that both of these women were confirmed without any significant opposition from the Senate makes them both, I think, look like more moderate picks than folks likely Lynch and Watford. In addition, for practical reasons, I think it is very significant that Judge Kelly is from Iowa and has Senator Grassley as a backer. For political reasons, the fact that Judge Nguyen is an immigrant (and did not go to any Ivy League schools) makes her a uniquely interesting possible nominee.

Prior related post:

UPDATE: I am intrigued to now see Tom Goldstein has this new post up at SCOTUSblog on this front which get tarted this way:

This post substantially revises and supersedes my earlier one on how the political parties will likely approach the Scalia vacancy, in which I had concluded that Ninth Circuit Judge Paul Watford was the most likely nominee.  On reflection, I think that Attorney General Loretta Lynch is more likely.  I also think that the Republicans will eventually permit the nomination to proceed on the merits and reject it on party lines.

February 14, 2016 at 03:29 PM | Permalink

Comments

Picking the wrong candidate, one that is too far to the left, before the primaries will only fuel the grass roots populism of certain candidates. I hope there is a cautious pause before anything is even discussed. (former OSU student from RI)

Posted by: Douglas | Feb 14, 2016 3:44:43 PM

I don't understand the woman aspect. He has already nominated two women, both who have been confirmed. This isn't to say he can't or must not nominate a third but it is to say that his legacy on that front is already sealed. I don't see an addition to his legacy on that front by nominating a third one.

2000 years in the future:

Legal scholar one: "But hey, it says that some guy named Obama only nominated TWO women when he could have nominated THREE women."
Legal Scholar two: "Right, this is what I am sayin'. The whole country fell apart after that! What kind of loser only goes 2/3 of the way!"

Posted by: Daniel | Feb 14, 2016 4:24:45 PM

http://abovethelaw.com/2016/02/who-will-obama-nominate-to-replace-scalia-a-gamblers-guide/

Above the law now has a post up.

The most intriguing is bringing Sandra out of retirement. If Obama wants to do his duty and punt the ball, it is possible though at her age why the hell would she want to do it?!

Posted by: Daniel | Feb 14, 2016 5:00:06 PM

The main point of nominating a woman, Daniel, is political: Dems always want and need women, especially young women, to be motivated to come out and vote for them. This is one big reason why we often hear "war on women" talk around election time. If Obama nominates a woman, every female Dem plays up claims of gender bias if/when the male-dominated GOP Prez candidates and GOP-male-dominated Senate seeks to prevent even a vote. In addition, at least a few of the six female GOP senators are considered relatively moderate and may feel particular disinclination to vote against an impressive female nominee.

Another possible benefit of a female appointment would be to free up a future Prez not to be quite so concerned about gender issues when replacing Justice Ginsburg in coming years. But this seems a much less significant concern than the short-term political one.

Posted by: Doug B. | Feb 14, 2016 5:49:25 PM

Obama should nominate a moderate Republican. It would still be a net gain for the left on the Court (Scalia being the opposite of moderate), and the Republicans in the Senate might pause before vetoing a fellow Republican.

Posted by: sagebrush | Feb 14, 2016 6:26:47 PM

Re Jane Kelly, I can't see a career public defender getting through this Senate, no matter how well-respected.

Posted by: sagebrush | Feb 14, 2016 6:29:25 PM

"I think that Attorney General Loretta Lynch is more likely."

Eh. ANOTHER non-judge especially now? Come on. Tom Goldstein is really overthinking things there, trying a bit to sound all wise and politically savvy.

I'm still thinking the Indian-American judge on the top of Dahlia Lithwick's short list would be the most logical choice. I understand the value of making up for lost time regarding nominating a woman, but do think two is not a bad deal.

A public defender on the bench would be a nice touch though. The Grassley angle is interesting.

Posted by: Joe | Feb 14, 2016 6:46:00 PM

@Doug.

I think both you and Tom are mistaken and you risk costing Hillary the Presidency on this basis (maybe that's the point, IDK). The fact is that your argument is deeply sexist. What has astonished me about the most recent election cycle is how young women understand the argument is sexist and resent it for being sexist. The fact is that the majority of young liberal women support a 70 year old man; Sanders won the under 30 female vote by a 6-1 margin over Clinton in Iowa.

Dems always want and need women

Not any more. This type of argument is going to lose the vote of liberal women, not gain it. They want to be judged on their own merit, not because of their vagina.

BTW, this is one reason why Warren has been so quiet this election cycle. She knows that some of her most important shock troops in future election cycles are young liberal women. She doesn't want to alienate them by endorsing Hillary before she has too. It is crucial to her own future political ambitions that she not been seen as endorsing Hillary just because she is a woman.

If it is perceived that Obama has nominated another woman because of the fact she is a woman that is going to be seen as a provocation by young liberal women rather than a placation. This generation gap between young liberal women who perceives the revolution as over (having won it) and the older generation that perceives it as not being won yet is one of the most interesting aspects to this election cycle. In this regard another female could actually harm Obama's legacy, rather than enhance it.

Posted by: Daniel | Feb 14, 2016 6:52:43 PM

Tom Goldstein knoes exactly as much as the rest of us when it comes to a potential nominee: zilch.

Posted by: GrizzlyBear | Feb 14, 2016 8:03:21 PM

I would like a Supreme Court Justice who has tried criminal cases on behalf of defendants in his/her career. Right now there are 8 Justices who have never done that and only one has tried a jury trial as a lawyer. The person on the 8th Circuit who was a public defender would be acceptable to me.

Posted by: Liberty1st | Feb 14, 2016 10:10:14 PM

Daniel: you are right that young women are not drawn to female tokenism. But Obama would nominate someone clearly qualified, and I think she could be an appealing focal point for gender politics.

Hillary is struggling to secure the young liberal white female vote because she is from a different generation and she has serious credibility issues and the Clinton name. But those voters will not swing the general election, it will be the soccer moms.

Posted by: Doug B. | Feb 14, 2016 11:37:00 PM

Incredibly sad that the one institution in the USA that should be totally independent from politics, is a martyr to it. No wonder the rest of the justice system is so twisted in a reflection of it.

Posted by: peter | Feb 15, 2016 8:54:42 AM

To be fair peter, the nomination process is given to political actors, so it's going to be at least somewhat political by design.

Posted by: Joe | Feb 15, 2016 10:06:14 AM

A person who was a public defender and is now an appellate judge would add some knowledge to the other eight justices who never tried a case for a defendant in their narrow lives. That women on the Eighth Circuit needs to be looked at.

Posted by: JackMehoff | Feb 15, 2016 1:08:07 PM

I would note, in considering possible nominees, that seven of the eight current justices spent most of their pre-court career in the Washington-Boston corridor. While there is no requirement for geographical diversity on the court, there are great legal minds that practice or sit on the bench in other parts of the country.

Posted by: tmm | Feb 15, 2016 4:49:06 PM

Jane Kelly, it is.

Posted by: Joe | Feb 15, 2016 7:47:34 PM

Judge Jane Kelly has an Irish name. The Irish have long been discriminated against. Remember the movie Blazing Saddles where the mayor agreed to let the Freedmen in and then paused and yelled: But Not The Irish! Well, its time for an Irish woman to be on the Court.

Posted by: Liberty1st | Feb 15, 2016 7:48:54 PM

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