Conservative Supreme Court Justice Antonin Scalia died of natural causes this weekend at age 79. Scalia leaves behind a Court that splits more or less evenly along ideological lines, and a slate of cases likely to result in a 4-4 tie as long as his seat remains vacant. Obama has pledged to move swiftly to nominate a replacement, despite staunch opposition from Senate Republicans.
Asked Tuesday afternoon whether it’s safe to assume he’ll nominate a moderate, the president said, “You shouldn’t assume anything other than they’ll be well-qualified.”
That’s fair enough, but it is instructive to look at the characteristics shared by most successful Supreme Court nominees, to help parse who the president might pick. They’re typically in their late 40s to early 50s (53 is the average age at the time of a justice’s confirmation). Most candidates have argued before the Supreme Court, clerked for one of the Court’s justices and/or worked as a circuit court judge. Many successful nominees — including John Roberts, Ruth Bader Ginsburg, Clarence Thomas and Scalia — came from the D.C. circuit court. And Obama has always prized diversity when it comes to his judicial nominees; there’s no reason to believe he’ll abandon that principle now.
Here are a handful of individuals who fit that profile and whose names have been floated by legal experts.
The name most frequently invoked since news of Scalia’s death broke on Saturday is that of 48-year-old Srinivasan. He was unanimously confirmed by the Senate to the D.C. circuit court in 2013, a fact that would make it somewhat awkward for those same Republicans — including presidential candidates Ted Cruz and Marco Rubio — to block his confirmation to the Supreme Court now. Srinivasan’s background appeals to both parties: He clerked for Reagan appointee Sandra Day O’Connor, and has worked for both the Bush and Obama administrations. Some liberals are wary of his record; for instance, he’s argued before the Supreme Court that ENRON President Jeffrey Skilling should be granted a new trial and that Exxon should be immune from liability for human rights abuses agents for the corporation carried out abroad. Then again, he represented Al Gore in Bush v. Gore, and worked on the case that struck down the Defense of Marriage Act. Ted Cruz — who has threatened to filibuster any Obama nominee — has called Srinivasan a longtime “friend.”
Watford, 48, is another candidate who has a history of working for both conservatives and liberals. Before he was confirmed to the U.S. Court of Appeals for the Ninth Circuit in 2012, he clerked for the Ninth Circuit’s Alex Kozinski — one of the country’s most well-known conservatives judges — and later for Justice Ruth Bader Ginsburg. Watford was confirmed to his present post by a vote of 61-34. Nine Republicans voted in favor of his appointment; Sen. Chuck Grassley, the chair of the Judicial committee, was not among them, on the basis of Watford’s views on immigration and the death penalty. (Watford worked with the ACLU and National Immigration Law Center to contest Arizona’s infamous immigration bill, SB 1070.)
Jane Louise Kelly
Grassley could have a harder time rejecting 52-year-old Kelly, a former federal public defender in Grassley’s home state of Iowa. (Grassley has repeated the inaccurate GOP line that it’s “standard practice” not to confirm a nominee in an election year.) Grassley championed Kelly’s appointment to the U.S. Court of Appeals for the Eighth Circuit in 2013. Kelly, like Srinivasan, was confirmed unanimously by the Senate.
Patricia Ann Millett
Millett, 52, was also confirmed by the Senate to the D.C. circuit court in 2013, though the vote for Millett vote was closer than it was for Kelly or Srinivasan (56-38). Millet worked for the appellate staff of the DOJ’s Civil Division before becoming assistant to the U.S. solicitor general — a role in which she argued some 25 cases before the Supreme Court.
SCOTUSBlog co-founder Tom Goldstein on Tuesday called Attorney General Lynch, 56, the most likely nominee (after revising his earlier bet on Watford). He reasons that her background as a prosecutor, her gender, her race, the fact that she is admired inside the administration and the fact that she was recently vetted by the Senate for her appointment as attorney general all work in her favor.
California AG Harris has a profile that’s somewhat similar to Loretta Lynch’s. Harris, 51, is currently running for the U.S. Senate seat vacated by Barbara Boxer. She was a longtime prosecutor and, like Lynch, she is a black woman. Women remain outnumbered by men on the Supreme Court, and there is only one African-American on the bench, Clarence Thomas. Obama, who has worked to make the judiciary more closely resemble the American people generally, will probably look to add a woman and/or a minority to the high court.
Fifty-one-year-old Nguyen, like Watford, sits on the Ninth Circuit Court of Appeals. The Vietnamese American judge, who previously worked as an assistant U.S. attorney in California, was confirmed by an overwhelming majority of senators (91-3) in 2012.
Before Barron, 48, was appointed to the U.S. Court of Appeals for the First Circuit, he worked for the Obama administration as assistant AG in the Office of Legal Counsel. It was in that capacity that Barron authored a controversial memo justifying the use of drones to kill Americans abroad without due process; the administration used that justification to kill U.S. citizen Anwar al-Awlaki in Yemen. That may have hurt him with Democrats, but the Senate ultimately voted 53-45 to confirm Barron’s nomination.