Despite calls to select a Supreme Court nominee from outside the judicial monastery, President Barack Obama doesn’t appear to be ready to leave the faith.
In his search for a replacement for the late Justice Antonin Scalia, President Barack Obama is zeroing in on a small group of appellate court judges with largely traditional credentials and a history of bipartisan backing. The choices suggest the White House plans to challenge the Republican Senate to block a nominee whose pedigree might have paved the way for a relatively easy confirmation — if the fight weren’t playing out in an election year.
Obama’s top-tier of candidates include Judge Sri Srinivasan of U.S. Court of Appeals for the District of Columbia Circuit, Merrick Garland, chief judge on same court, and Judge Paul Watford of the 9th U.S. Circuit Court of Appeals, according to a source familiar with the selection process. Ketanji Brown Jackson, a D.C. district court judge, is also under consideration, although a less likely option, said the source, who asked not to be identified because the person was not authorized to publicly discuss private White House deliberations.
The judges’ inclusion on the short list was first reported by National Public Radio, which also named Judge Jane Kelly of the 8th Circuit Court of Appeals as a finalist being interviewed by the president.
The emerging list, which the White House says is not final, seems in line both with Obama’s personal and political aims. As he has in his past two nominations, Obama appears drawn to candidates with traditional resumes — Supreme Court clerkships, prestigious posts in government and stints at major law firms.
The list also shows the president grappling with whether to add racial or gender diversity to the court. Srinivasan, 49, would be the first Indian-American on the court, while Watford, 48, would be the third African-American to hold a seat. Brown Jackson, 45, would be the first African-American woman.
But the push to make history appears to be just part of an especially complex mix of calculations. Facing Republicans vowing to block any nominee and preparing to mount a months-long campaign to back up their position, the White House has repeatedly stressed that the nominee will have “impeccable” credentials — suggesting the choice will have a record so sterling it will shame GOP senators into backing down.
Obama’s consideration of Garland appears to fit into that approach. Garland, a white, 63-year-old with an Ivy League, East Coast background, would not add diversity to the court. But with a reputation as a judicial moderate and with broad respect in Washington, Garland could put maximum pressure on some GOP senators to crack from leadership opposition.
Others on the list press other political buttons. Both Srinivasan and Watford come with some bipartisan endorsement. Srinivasan was unanimously confirmed to the bench in 2013. Watford’s confirmation vote was a more partisan 61-34 split.
As Obama appointments, neither comes with long records on the bench, leaving their judicial philosophies somewhat ambiguous.
Other candidates come with added challenges and will test Obama’s interest in adding diversity of experience to the court.
The president appears to have ruled out naming a politician or administration official, despite briefly considering Attorney General Loretta Lynch. On the short list, only Kelly, a former public defender in Iowa, did not follow the traditional ladder to the highest court.
The risks associated with her experience have already emerged.
Even in a normal confirmation environment, there will be many types of arguments available to opponents, said Michael Gottlieb, a former White House lawyer who is now a partner at the Washington firm of Boies, Schiller and Flexnor. The White House tries to limit those to leave the nominee’s opponents with “only the most unattractive arguments,” he said, adding, “All it takes to form the basis of a narrative against a nominee is one negative story.”
Meanwhile, conservative and liberal groups are only beginning their battle over the Supreme Court vacancy.
There’s already been a smattering of media ads and behind-the-scenes research. But those are just warning shots in what’s sure to be an expensive fight that will color November’s elections.
With the court’s 4-4 balance between liberal and conservative justices in play, both parties and their allies are already reaching out to rally their memberships, solicit contributions and savage the opposition.