Who President Obama May Nominate To The Supreme Court

The nominee will almost certainly face a long, drawn-out battle.

02/14/2016 01:11 pm ET | Updated Feb 15, 2016
  • Igor Bobic Associate Politics Editor, The Huffington Post
Drew Angerer via Getty Images
The flag at the Supreme Court flies at half-staff in honor of Justice Antonin Scalia.

President Barack Obama plans to select a successor to Supreme Court Justice Antonin Scalia, who died Saturday, despite the fact that Republicans have already vowed to block Obama's nomination until the next president assumes office.

Such a lengthy vacancy on the court would likely preserve the status quo in a number of high-profile cases this term, including those affecting the issues of affirmative action, immigration, abortion access and possibly even the president's climate regulations. It would also leave in legal limbo countless other cases Scalia and his clerks have worked on this term.

Whomever Obama nominates will almost certainly be facing a long, drawn-out battle with near zero odds of confirmation in the Senate, making prospective nominees even harder for the administration to find. But there are some potential names currently considered to be on the president's shortlist.

CNN legal analyst and New Yorker writer Jeffrey Toobin has his money on Judge Sri Srinivasan of the U.S. Court of Appeals for the D.C. Circuit. Obama fought to appoint the 47-year-old native of India to a seat on the D.C. Circuit court, and the Senate unanimously confirmed him in 2013. Srinivasan has joined liberal colleagues on the court in several cases, and seems to be of a similar ideological bent as Justices Sonia Sotomayor and Elena Kagan.

Esteemed court-watcher Tom Goldstein at SCOTUSblog argues that Paul Watford, who currently serves on the 9th Circuit, is the most likely choice. Goldstein makes the case that Watford, who is black, would add to Obama's legacy and help turn out a key Democratic constituency during the 2016 presidential election:

No other black woman immediately comes to mind as a nominee, though I haven’t researched the question in some time. But there is an obvious black male: Paul Watford, an Obama appointee to the Ninth Circuit.  Watford is in his late forties. He is well respected and reasonably well known in Democratic legal circles.

Watford was confirmed by the Senate in 2012 by a 61-34 vote, which is a filibuster proof majority. Nine Republicans voted in favor. That gives the Administration considerable ammunition to argue publicly that Republicans, by refusing to process the nomination, are blocking someone who is recognized to be qualified.

A similar argument could be made for a Hispanic nominee. California Supreme Court Justice Mariano-Florentino "Tino" Cuéllar would fit the bill. Cuéllar previously served as an official in the Clinton and Obama administrations, and has a background in international law. At age 43, however, he would be one of the youngest Supreme Court nominees.

Another potential nominee, according to Yahoo News' Olivier Knox, is Merrick Garland, the chief judge on the D.C. Circuit. Garland is a former high-ranking Justice Department official whose name was also considered for a seat on the Supreme Court after the retirement of Justice John Paul Stevens in 2010.

Other possibilities on Obama's shortlist include several current and former officials in his Cabinet, including former Attorney General Eric Holder, current Attorney General Loretta Lynch and Homeland Security Secretary Jeh Johnson. All three officials would be even less likely to be confirmed due to the political nature of their duties.

Solicitor General Don Verrilli successfully defended major parts of Obama's legacy on the court, including the Affordable Care Act and gay marriage, and is deeply popular with liberals in and out of the White House. But he, too, would face substantive resistance in the Senate. Another possibility is Georgetown Law professor Neal Katyal, who succeeded Kagan as acting solicitor general for one year.

There is a chance Obama makes more of a consensus pick, a nominee who could appeal to moderate Senate Republicans. One such selection would be Judge Jane Kelly, who serves on the 8th Circuit. A moderate public defender from Iowa who graduated from Harvard Law in Obama's class, Kelly is beloved by Sen. Chuck Grassley (R-Iowa), who chairs the crucial Senate Judiciary Committee.  

Sen. Lindsey Graham (R-S.C.), another member of the Judiciary Committee, suggested another candidate: "someone like" Sen. Orrin Hatch (R-Utah). Hatch serves as the president pro tempore of the Senate and is the most senior senator among the GOP caucus.

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