"Ten Potential Democratic Supreme Court Nominees Who Aren’t Named ‘Sri Srinivasan’"
This afternoon, the Senate confirmed Sri Srinivasan to the staunchly conservative United States Court of Appeals for the D.C. Circuit. Meanwhile, Senate Republicans already have a plan to prevent anyone else from being confirmed to this powerful court while Obama is in the White House. Obama pulled this one confirmation off because the Srinivasan nomination was practically an act of trolling. Srinivasan clerked for a Republican judge and a Republican justice. He is unquestionably one of the best Supreme Court advocates in the country. And his nomination enjoys the support of Republican legal stars such as Paul Clement, Bush v. Gore attorney Ted Olson, and anti-Clinton inquisitor Ken Starr. Had Senate Republicans filibustered this nomination, it would have been difficult for them to deny allegations that they are acting in bad faith.
In no small part because of Srinivasan’s stellar legal credentials, the New Yorker’s Jeff Toobin claimed that “if Srinivasan passes this test and wins confirmation, he’ll be on the Supreme Court before President Obama’s term ends.” This claim is premature. At the very least, court watchers — and the President himself — should have some idea what Srinivasan thinks about the law before he joins the most powerful Court in the land, and Srinivasan’s views are largely unknown. After some time on the DC Circuit, Srinivasan may indeed emerge as a leading candidate for the Supreme Court. In the mean time, here are ten other possible candidates that could appeal to a Democratic president:
1. Paul Watford
Ninth Circuit Judge Paul Watford was among President Obama’s most outstanding appointees during his first term. A former clerk to Justice Ruth Bader Ginsburg, Watford is in his mid-40s and thus has many years of eligibility left for the Supreme Court. Like Srinivasan, Watford spent much of his career at a large law firm, so he should ideally spend enough time as a court of appeals judge that his views on important legal issues are clear. Nevertheless, he is likely to be near the top of any Democrat’s list of potential Supreme Court nominees.
2. Jane Kelly
Eighth Circuit Judge Jane Kelly began her career with the kind of credentials that all but guarantee a lucrative career to lawyers who want one — a Harvard Law degree and a United States Court of Appeals clerkship. Yet she chose to spend nearly two decades as a federal public defender instead. She also experienced an unusually easy confirmation process due to a personal tie to Sen. Chuck Grassley (R-IA). In a perfect world, she would spend some time as an appeals court judge becoming more familiar with the civil side of her docket, but the sort of attorney who passes up huge law firm salaries to ensure that criminal defendants receive excellent representation would be a welcome addition to the Supreme Court.
3. Alison Nathan
Appointing a federal district judge like Alison Nathan directly to the Supreme Court is unusual, but Judge Nathan’s experience as a trial judge would be a helpful addition to a Court that currently only has one former trial judge, Justice Sonia Sotomayor. Nathan is a former law clerk to Justice John Paul Stevens, and a former Associate White House Counsel. She would also be the first openly gay justice if confirmed to the Supreme Court.
4. Kamala Harris
Supreme Court observers ignore SCOTUSBlog’s Tom Goldstein at their peril, so we will not make that mistake by leaving out his views regarding the next Supreme Court nominee. Last year, Goldstein named Harris as an “ideal nominee” based on her youth, qualifications, and that fact that she would diversify the Supreme Court’s bench. One way she would add diversity is by becoming the only former elected official on the nation’s highest Court, a perspective that could make her particularly effective in pushing back against misguided election decisions such as Citizens United.
5. Goodwin Liu
California Supreme Court Justice Goodwin Liu had a rough ride as a nominee to the Ninth Circuit, largely due to spurious claims that he would use a seat on the bench to, in Grassley’s words, make America more like “communist-run China.” Since joining California’s highest court, Justice Liu has instead emerged as “a paragon of judicial restraint,” in one law professor’s words. While Senate Republicans are unlikely to consider this fact if the president nominates someone that they once filibustered, a successful round of filibuster reform could remove that obstacle.
6. Deval Patrick
The Massachusetts governor is not just a successful politician, he is also a Harvard Law grad, former U.S. Court of Appeals law clerk, and former head of the Justice Department’s Civil Rights Division. Like Harris, Patrick would bring an elected official’s perspective to the Court, and his civil rights background would provide a counterbalance to Justice Antonin Scalia, who recently labeled the Voting Rights Act a “perpetuation of racial entitlement.”
7. Pam Karlan
Stanford Law Professor Pam Karlan is a constitutional scholar, a leading expert on voting rights and a top Supreme Court advocate. In the wake of voter ID laws, early voting restrictions, voter purges, barriers to voter registration, and other efforts to suppress voting, Professor Karlan would be an ideal candidate to restore the Supreme Court’s respect for the franchise. Additionally, Karlan is in a long-term committed relationship with a woman, so she would add this perspective to the bench as well.
8. Paul Smith
Paul Smith may be the nation’s preeminent gay rights litigator, having argued and won Lawrence v. Texas before the Supreme Court. He also argued a pair of challenges to partisan gerrymanders that were halted by the five conservative justices on the Supreme Court. As a justice himself, Smith would be the ideal candidate to write an opinion declaring such gerrymanders unconstitutional once and for all.
9. Neal Katyal
Former acting Solicitor General Neal Katyal has the distinction of being on the correct side of the most important constitutional issues to arise in the last two presidencies. As the Obama Administration’s top litigator, Katyal defended the Affordable Care Act in multiple courts of appeal against partisan lawsuits seeking to undermine it. And he convinced the Supreme Court to place an important limit on President Bush’s attempt to isolate Guantanamo detainees from the law in Hamdan v. Rumsfeld.
10. Tom Perez
Senate Republicans wasted no time in opposing Tom Perez, the Labor Secretary nominee given the task of cleaning up the Justice Department’s Civil Rights Division after the Bush Administration left it in a shambles, once President Obama nominated Perez to the cabinet. Nevertheless, Perez’s background in civil rights and labor policy would help balance the conservative justices who turned their backs on Lilly Ledbetter’s right to equal pay for equal work. And, so long as Democrats control the Senate, a filibuster of Perez’s nomination could only be sustained if Senate Democrats allow it.