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:

• Off the cuff (bad?) SCOTUS advice for Prez Obama: nominate current AG Loretta Lynch tomorrow

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.