« Pennsylvania struggling with what law applies to nearly 500 juve LWOPers needing resentencing after Montgomery | Main | Notable example of "prison industrial complex" using "phony-baloney numbers” to grow or protect its budget »

March 11, 2016

The latest SCOTUSblog analysis of the top contenders for SCOTUS nomination

Tom Goldstein has this lengthy new SCOTUSblog post titled "Handicapping the five potential nominees," which effectively explains his thinking about where we now stand in the SCOTUS sweepstakes a month after Justice Scalia's surprising death. My thinking is somewhat similar, and here is how his post starts and ends:

Multiple media reports say that there are only five potential nominees to fill the Scalia seat: Ketanji Brown Jackson, Merrick Garland, Jane Kelly, Sri Srinivasan, and Paul Watford.  In this post, I assume that is correct.

My best guess is that the choice will come down to whether the president concludes that Judge Brown Jackson’s service on a district court and on the Sentencing Commission give her sufficient objective qualifications for the job. If so, I believe he will pick her. If not, I think he will pick Judge Srinivasan, perhaps nominating Judge Brown Jackson at the same time to fill Judge Srinivasan’s seat on the D.C. Circuit....

In the end, I think the president either will or won’t discount Brown Jackson because she alone is not an appellate judge.  If he does not treat that as an important consideration, I think he will pick her.  For the reasons above, I give her the slight edge.  It’s also important to recognize that there is a bit of a legacy to the Srinivasan nomination to the D.C. Circuit.  His nomination is one of the few that involved objections within a core Democratic constituency. Labor groups in particular slowed his appointment because of his work at a D.C. corporate law firm.  Their concerns were unfounded, but they were also never completely resolved.

As I’ve written before, I’m reliably told by someone deeply involved in prior nominations that the president simply will not appoint a district judge. If that is correct, then I think the nominee will likely be Srinivasan.  If so, the administration could get some of the benefits of the Brown Jackson appointment by simultaneously nominating her to fill Srinivasan’s seat on the D.C. Circuit.  That would position her well for a later Supreme Court appointment.

I had not previously given thought to the fact that by nominating DC Circuit Judge Srinivasan to SCOTUS, Prez Obama could also start talking up nominating Judge Brown Jackson to fill his seat. This would, in a way, give Prez Obama a politically appealing interesting "two-fer," and I am now thinking that this is what we should expect to see emerging from the White House, probably sometime toward the middle of next week.

Prior related posts on new SCOTUS nominee possibilities:

March 11, 2016 at 03:00 PM | Permalink


Giving it to Sri could cost Hillary the election. She cannot say with a straight face that she opposes Citizen United and other related cases and then approve of one of the great corporate warriors of the last 20 years getting a SCOTUS nod. The only reason a lot of liberal groups are keeping quiet is because they don't believe there is any chance of a nomination going through because if Sri was the actual nomination they would be raising hell.

So if Obama nominates him and there are no hearings she will have to promise not to renominate him. If, on the other hand, Sri gets the nomination and get approved there are going to some powerful liberal interest groups who will feel hoodwinked and will likely take it out on her.

I don't see his appointment as being a smart move, right now.

Posted by: Daniel | Mar 11, 2016 3:18:03 PM

One should not assume that a lawyer doing his job as an advocate means he would rule the same way on the bench. Srinivasan is a strong candidate who is probably more palatable than most to replace Scalia. We have to keep in mind that baseline is as compared to Justice Scalia, so I think the Citizen United criticism is unfounded. I'm concerned how he'd act on criminal justice issues, though, but I don't think we have much of a paper trail either way.

Posted by: Erik M | Mar 11, 2016 6:51:10 PM

Reported by CNBCNow its him, Watford or Garland.

Garland seems like a bland toss-in. Watford clerked for both Kozinski and RBG. That's just a bit of trivia really though interesting balance there (Scalia used to hire liberal clerks; figure Kozinski does too). I think Watford would be best of the three.

I think Clinton's chances don't rise or fall on an Obama pick with a good government resume & you can be a corporate lawyer and still support campaign finance regulation. It isn't an either/or. But, I see how his corporate clients can turn off some people. Plus, the general assumption is whomever you pick is a goner. So, no need to toss in some compromise pick in that respect. Sri might have made more sense in 2017.

Watford also received some conservative recommendations last time -- http://www.afj.org/our-work/nominees/paul-watfordhttp://www.afj.org/our-work/nominees/paul-watford

Posted by: Joe | Mar 11, 2016 7:22:44 PM

Judge Watford would be excellent.

Posted by: USPO | Mar 11, 2016 7:38:02 PM

"One should not assume that a lawyer doing his job as an advocate means he would rule the same way on the bench."

On the contrary, that is exactly what one should assume. There is no persuasive evidence that judges get appointed and begin a rapid metamorphosis into an entirely different being.


Good article on this issue right now. If Trump wants to appoint a pro-business person that makes sense, but for the Dems to just roll over on this issue is disgusting.

Posted by: Daniel | Mar 11, 2016 9:00:00 PM

There is no evidence he advocated his personal positions as opposed to the positions of his client.

Regarding the nominees, I was annoyed that the SCOTUSblog post on Paul Watford didn't even touch his qualifications, just the politics of the nomination process. He's a UCLA grad. He clerked for Judge Kozinski and Justice Ginsberg, was an AUSA on White Collar Crime cases, and focused on appellate litigation in private practice. He's been on the 9th Circuit for four years and authored the majority opinion in Patel, the Fourth Amendment case the Supreme Court recently affirmed. All that is good information.

Merrick Garland clerked for Judge Friendly and Justice Brennan. Judge Friendly alone is intriguing. He's Harvard undergrad/Harvard Law. He's a former prosecutor (which can be good or bad, but at least suggests he isn't ignorant of how the criminal justice system works in real life, which is good), he taught antitrust law at Harvard (which I appreciate, since I'd prefer someone with a somewhat academic mindset). I think his qualifications are overwhelming. His age is definitely a problem. There's a sweet spot of 45 to 55 and he's 63. His wikipedia page (which is poorly written and in desperate need of a cleanup) seems to suggest he's more pro-prosecution than the liberal members of the Supreme Court but that he's generally a very neutral Circuit Judge that just applies existing precedent without stepping out on a limb in any direction (in other words, very hard to predict).

Posted by: Erik M | Mar 12, 2016 10:35:25 AM

Watford (a former prosecutor) would be a tragic choice for criminal defendants. Watford's instincts always seem to favor the Government, and he seems to pride himself in trying to come up with issues on his own to rule against criminal defendants. He suffers from what I view as the cardinal sin of judges: he's arrogant. He thinks he knows better than everyone else. Apart from that, and more generally, the federal bench is full of former prosecutors. Can't we have one, just one, former public defender on the Supreme Court? It's bad enough that there's only two -- two -- former public defenders at the federal court of appeals level. If Watford is the nominee, I don't see any reason for liberals to support him. I'd rather take the chance that a democrat takes the White House in 2016 (which, as of now, seems likely) and selects someone whose instincts are different than Watford's.

Posted by: Anyone but Watford | Mar 12, 2016 11:20:31 AM

Judge Kelly. 8th Circuit. Former public defender. She tried jury trials. No one else on the Supreme Court today has defended a human in a criminal felony jury trial. All Harvard and Yale, law clerk for this or that dweeb.

Posted by: BarkinDog | Mar 12, 2016 11:54:16 AM

"There is no evidence he advocated his personal positions as opposed to the positions of his client."

What? His personal position is that he decided to work for corporate clients. That decision alone is disqualifying. He didn't have to take on any corporate clients ever. Many lawyers don't. So to pretend that such a career choice says nothing about the nominee is sticking one's head in the sand.

Posted by: Daniel | Mar 12, 2016 11:58:19 AM

I think "tragic" is a bit much and not sure that Srinivasan will be better there really. Sotomayor is in effect the biggest defendant friendly justice (well, now that Scalia is gone, if you follow the thought process of some) and she was a former prosecutor.

Prof. Berman elsewhere for whatever reason noted he thinks Kelly is problematic vis-a-vis the black woman judge he has promoted on this blog, but as a district court judge, apparently was seen as not a good option. I personally favor that but picking among the options available. Garland always seems to be the also-ran, which might be a bit unfair, but really not that enthusiastic.

A decent biography of Watford: http://www.afj.org/our-work/nominees/paul-watford

He worked on behalf of undocumented immigrants, death row inmates and one of the cases as a judge cited regards protecting 4A rights.

Posted by: Joe | Mar 12, 2016 12:59:32 PM

I also think this summary was useful & that's where I found the link to that biography:


Posted by: Joe | Mar 12, 2016 1:02:53 PM

It's "disqualifying" to have represented a business? What are you talking about?

Posted by: anon | Mar 12, 2016 2:31:17 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB