Obama and the Supreme Court: Lose Today, Win Tomorrow?

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AP Photo/Pablo Martinez Monsivais

The unexpected death of Antonin Scalia leaves President Barack Obama with an unusual choice. He is not, precisely, nominating someone to fill the vacant seat on the Supreme Court. Republican Senate leaders have clearly signaled that they will not consider allowing Obama to fill the seat. In a sense, Obama's nomination is symbolic-the first shot in a war that will, if progressives are lucky, allow Hillary Clinton or Bernie Sanders to nominate Scalia's replacement in 2017. When choosing among nominees, Obama would do well to consider several factors with an eye on the long game.

One thing Obama is likely to try to do is to minimize substantive grounds for opposition. A sitting federal judge who attracted bipartisan support and generated little controversy during the process of his or her previous confirmation would be an ideal starting point. Another advantage to choosing a sitting federal judge is that such a candidate would be more likely to agree to be nominated. A judge currently in private practice or academia would have little incentive to go on leave and undergo a comprehensive vetting process for what is almost certainly a doomed nomination. A federal judge would already have been vetted, and would be able to stay on the bench with his or her nomination pending.

This variable is why many observers have predicted that Obama will nominate D.C. Circuit Court of Appeals Judge Sri Srinivasan. Srinivasan was confirmed 97-0 by the Senate in 2013, clerked for two Republican-appointed federal judges, and served under the Solicitor General during both the Bush and Obama administrations. With his bipartisan background, Srinivasan is the probably the best nominee Republicans could hope for. Nominating him would therefore cast GOP obstructionism in a particularly harsh light by making it nearly impossible for Republicans to raise reasonable, substantive objections.

As the Prospect's Robert Kuttner suggests, however, a Srinivasan nomination could prove too clever by half for Obama. What if Senate Republicans, not willing to bet on winning the White House in November, decided to lock in a nominee more moderate than they would face in the event that Clinton or Sanders won?

But my guess is that that scenario is unlikely. Having preemptively declared that they won't confirm a nominee, at a time when even feigning open-mindedness would score them political points, Senate Republicans are highly unlikely to backtrack for any Obama nominee short of a Robert Bork-style conservative. In addition, as the bitter and protracted battle over the Affordable Care Act illustrates, the Republican conference under Senate Majority Leader Mitch McConnell has consistently preferred all-or-nothing gambles to negotiating for the best deal they can get in the short term.

While Srinivasan has generally been cast as more moderate than the typical Democratic nominee, this characterization is somewhat misleading.

It's more that he's a blank slate. He could easily have a voting record similar to that of Elana Kagan-a good one from a progressive standpoint, in other words. He could end up being to the right of any of the Democrat-appointed Justices now on the Supreme Court. Nobody really knows, and he doesn't yet have enough of a track record at the D.C. Circuit to permit a proper evaluation. Under most circumstances, this would be an unacceptable risk-although the odds are he'd be considerably more progressive in his rulings than anybody a Republican president would choose.

Jane Kelly, currently a judge on the Eighth Circuit who was unanimously confirmed by the Senate in 2013, has some of the same advantages as Srinivasan. Since she was strongly supported by her fellow Iowan and current Senate Judiciary Committee Chairman Chuck Grassley, it would not be easy for Republicans to justify opposing her. Kelly does, however, have some virtues from a progressive standpoint that Srinivasan doesn't. While federal judges tend to be corporate lawyers or prosecutors, Kelly was a public defender. This gives her an important perspective that is all too rare on federal courts. She has not built up a lengthy track record as a judge yet. But earlier this year she dissented from a ruling that blocked a lawsuit by a prisoner from going forward, providing at least one signal that she would bring a solid civil libertarian streak to the Court. It would be premature to assume that she'd be a strong progressive judge, but aspects of her record point in that direction.

Still, it's difficult to predict how Srinivasan and to a lesser extent Kelly would vote if they sat on the Supreme Court, and under normal circumstances, progressives eager to recalibrate the court's conservative course would not accept that risk. Kuttner makes a solid case that "Obama would do better to appoint a highly-qualified progressive." This would give the nominee the opportunity to make a case for liberal constitutional values, and possibly to generate a rallying point for a Clinton or Sanders presidency.

Who are some alternative nominees who would be more clearly progressive? The ideal nominee will have both impeccable formal credentials and a solid, if mainstream, progressive track record, and will also represent a Democratic constituency that could be motivated by Republican obstructionism. Fortunately for him, Obama has multiple candidates to choose from that meet these criteria. These are the candidates for Obama to consider in the event that he concludes confirmation-of anyone-is a lost cause.

At the top of the list sits Paul Watford, a judge currently serving on the Ninth Circuit Court of Appeals. Tom Goldstein of SCOTUSblog considers Watford the most likely nominee, and with good reason. A 48 year-old African American, Watford clerked for Justice Ruth Bader Ginsburg, and has demonstrated solid civil libertarian credentials while serving on the Ninth Circuit. He wrote the Ninth Circuit's opinion in Los Angeles v. Patel, which rejected a Los Angeles ordinance requiring hotels to hold the personal information of guests for 90 days and make it available to police even if they did not have a warrant. Watford's opinion that this was a violation of the Fourth Amendment was upheld by the Supreme Court. Watford would appeal to a base constituency of the Democratic Party while demonstrating a stronger progressive record than Srinivasan.

Two other potential African American nominees that appear frequently on hypothetical short lists probably don't fit the progressive bill as well as Watford. Kamala Harris, the Attorney General of California currently running for Senate, would be a strong Supreme Court nominee. But she won't-and shouldn't-abandon her campaign to pursue a quixotic Supreme Court nomination. Attorney General Loretta Lynch would also be a qualified choice, but because of her position she would generate plenty of grounds for opposition that would obscure Republican obstructionism. As Slate's Dahlia Lithwick dryly observes, "[g]iven how polarizing she has been as AG, this may be a tough fight for the President."

Another interesting possibility, raised among others by The Daily Beast's Michael Tomasky, would be California State Supreme Court judge Tino Cuellar.

A brilliant 43-year-old born in Mexico, Cuellar has a law degree from Yale and a Ph.D. in political science from Stanford. He served in both the Clinton and the Obama administrations. In an election in which the Democratic nominee will be facing either Donald Trump or someone who had to successfully compete with Trump with anti-immigration demagoguery of his own, having Senate Republicans spend the better part of the year obstructing an eminently qualified Mexican American candidate has obvious political appeal to Democrats. And he would be an excellent candidate to be re-nominated by a President Clinton or Sanders. The only downside to Cuellar is that he hasn't been previously vetted for a federal judicial nomination. But given his experience in the executive branch, this would probably not be a significant barrier.

A final possibility would be for Obama to broaden the scope of Supreme Court candidates under consideration. Vox's Dylan Mathews suggests the possibility of nominating Pamela Karlan, the brilliant Stanford legal scholar who was a top lieutenant in Obama's Civil Rights Division. If nobody can get confirmed, the argument goes, why not nominate someone with a history of staking out progressive positions, popular or not, and who can defend them eloquently? While I admire Karlan's work immensely, I would argue against a nomination that looks so likely to fail in the Senate. It's not clear to me that trying and failing to confirm a nominee expands the boundaries of the possible. But, at a minimum, she should be considered if a Democratic president has a Democratic Senate and the vacancy is still open.

This far from exhaustive list demonstrates that Obama is in something of a win-win situation. If Scalia is going to be replaced with a progressive judge, Democrats need to do as well as possible in November. And even if the nominee has no chance of winning immediate confirmation, a shrewd pick by Obama can move Democrats closer to victory on Election Day.