Short list of replacements for Justice Scalia

The untimely death of Supreme Court Associate Justice Antonin Scalia on February 13 has sent numerous Republicans into hysterical fits as they will witness close to three decades of conservative advantage on the High Court slip away if a left-wing Obama nominee is confirmed in 2016.

In contrast, countless Democrats have seized on the passing of Justice Scalia as a watershed to re-shape the court for, at minimum, the next decade.

One of the perils of modern democracy is the hyper-partisan nature of judicial nominations: This High Court affair is guaranteed to be heated from onset to conclusion.

With contentious cases set to confront the Court this spring, notably abortion, contraception, collective bargaining and affirmative action, it is essential the Senate perform the most basic function of holding hearings and confirming a nominee.

Amid what promises to be a rancor-filled interval to the Senate Judiciary Committee accepting deliberation for Mr. Obama’s final choice, speculation persists as to whom the White House will send to the Senate.

The names most often mentioned for nomination appear to be:  

Sri Srinivasan – Circuit Judge of the U.S. Court of Appeals for the District of Columbia and former Deputy Solicitor General of the United States, Srinivasan was elevated to his current position on the federal bench by Mr. Obama in 2012 and was confirmed by the Senate in 2013 on a 97-0 vote.

Advantages:  Clerked for former Associate Justice Sandra Day O’Connor and has argued 25 cases in front of the Supreme Court.  Liberals may both adore or loathe him:  Judge Srinivasan has represented Exxon Mobil and Rio Tinto for alleged abusive behavior overseas and he represented former Enron CEO, Jeffrey Skilling.  However, Srinivasan may be an attractive candidate for liberals in large part due to his Indian heritage, and his strong human-rights positions and his age, 48.

Disadvantages:  Conservatives may be leery of Srinivasan due to his assisting the Gore legal team in the 2000, his legal work on behalf of immigrants and his opposition to the Defense of Marriage Act.

Merrick Garland –  The Chief Judge for the U.S. Court of Appeals for the District of Columbia and former member of the Clinton Justice Department, Garland was elevated to the D.C. Circuit bench in 1997 on a 76-23 vote.

Advantages:  Often mentioned for a position on the High Court, Garland was rumored to be a candidate in 2010 to replace Justice John Paul Stevens.  Garland is by far the most qualified and experienced through his 20 years on the federal bench. Conservatives may embrace Garland because at his age, 63, he may not serve a lengthy term and his decisions have strongly favored law enforcement.  Although of less importance, Garland and Obama share the same home state, Illinois.

Disadvantages: A white male may not be appealing to the Left.  Garland has earned a legal reputation as a moderate, and may frustrate the liberal base in search of an arrangement closer to Obama’s previous appointments of Justices Sotomayor and Kagan.

Paul Watford –  Judge of the U.S. Court of Appeals for the Ninth Circuit and former Assistant U.S. Attorney for the Central District of California, Watford clerked for Associate Justice Ginsburg.  Watford was elevated to his current position on the federal bench in 2012 after a Senate vote of 61-34.

Advantages:  Relatively young at 48 years of age.  Nine Republicans supported Watford for his first position on the bench in 2012.  Although this does not represent a tacit approval, should his nomination survive Judiciary Committee deliberations, he could be confirmed.

Disadvantages:  Lack of experience on the bench.  Watford may have credentials, but inexperience may hurt his chances for a nomination.

Patricia Ann Millett –  Circuit Judge of the U.S. Court of Appeals for the District of Columbia, a former Justice Department Civil Rights Division attorney and former assistant to the Solicitor General, Millett was elevated to her position on the bench, a position she shares with Judge Srinivasan, in 2013 after a Senate vote of 56-38.

Advantages:  Argued 32 cases in front of the High Court, has ten years of experience representing the United States as an associate in the office of the Solicitor General and, along with Judge Merrick Garland, has been considered for the High Court before.  Millett also holds a second-degree black belt in Taekwando; this cannot injure her potential nomination.

Disadvantages:  Millett survived a rigorous confirmation hearing, where Senator Harry Reid withdrew the “nuclear option” to force her confirmation in 2013.

Adalberto Jordan – Judge on the U.S. Court of Appeals for the Eleventh Circuit and a former clerk for former Associate Justice Sandra Day O’Connor, Jordan served as a Judge United States District Court for the Southern District of Florida after his appointment by former president, Bill Clinton. Elevated in 2012, Jordan was confirmed by a Senate vote of 94-5.

Advantages:  Of Cuban-Hispanic heritage, Jordan is a southerner who is 55 years old.  Jordan clutches a strong resume as a prosecutor.  His Cuban identity may work in his favor as conservatives may suffer for blocking a Hispanic nominee when courting Hispanic voting bloc.

Disadvantages:  Past rulings on cases related to gay marriage may cause concern for conservatives.

 

Three names remain, but are less likely to garner serious consideration.  Jane Kelly, a Harvard classmate of President Obama; sitting Attorney General Loretta Lynch; and California Attorney General Kamala Harris are frequently mentioned as potential replacements for Justice Scalia.

Although Senate Judiciary Chairman, Charles Grassley, supported Kelly’s elevation to the bench, he has re-affirmed his opposition to any nomination forwarded by the White House.

Speculation over Attorney General Lynch is likely to be quieted by the GOP, as they have great concerns over any nominee associated with the Obama Justice Department.  California Attorney General Kamala Harris is a possible candidate; however, she appears more intent with her bid to re-place retiring California senator, Barbara Boxer.

Analysis

In the matter before the White House and Congress, the Constitution binds two branches of government, the legislative and executive, to administer to the third branch, the judiciary:  The President is obligated to carefully inspect and submit the most qualified individual to the Senate; the Senate Committee on the Judiciary’s role is to accept a nominee and proceed with healthy, spirited and nuanced debate; and the entire Senate is required to determine a nominee’s fitness with a full vote for a life-long appointment.

While conservatives charge Democrats would address this crucial matter in the same fashion if they controlled the upper chamber and a Republican occupied the White House, balking at any potential nominee and becoming obstructionists, it is the function of the Senate to oblige the citizens and a potential nominee with a fair and expeditious confirmation hearing.

While our Founding Fathers intended nomination hearings to be a political exercise, it is fair to say they neither anticipated nor desired the kind of incivility which often surrounds a nomination to the High Court.

Conservatives are right to point out the hypocrisy of Sen. Charles Schumer (D-NY) for brazen comments he delivered in 2007 demanding the Senate refuse to accept Bush nominees except in “extraordinary circumstances.”

Perhaps Mr. Schumer is unaware, but open seats on any level of the bench are forever extraordinary circumstances and urgent when the vacancy exists on the High Court, regardless if the political conditions do not suit him personally or politically.

Nonetheless, where a nominee’s positions lie on the political spectrum is irrelevant:  The Senate is committing a grave disservice its constituents should they chose to follow the bellowing of Sens. McConnell and Grassley, both of whom are the vanguard of obstruction on Scalia’s replacement.

Instead of engaging in the juvenile trickery of restricting a nominee and invoking Senate rules as a shelter for their prejudices, the GOP Senate should hold hearings in a timely manner and certify a qualified candidate.

Alternatively, the weight of this matter does not fall exclusively on the GOP:  Mr. Obama is held to account for his nominee and should carefully weigh an individual who will execute the responsibilities of this foremost position in our legal system.  Mr. Obama’s premier alternative is Judge Merrick Garland.

Instead of overturning the apple cart of American politics, wasting time engaging in the favored pastimes of hypocrisy and selective outrage or creating tripwires for nominees, the Senate should fulfill its duties and confirm a nominee.

 

[NBC News] [Politico] [New York Times] [Photo courtesy ABC News]