What Obama wants in a nominee

What Obama wants in a nominee
© Getty

President Obama has one major goal in picking a successor to Supreme Court Justice Antonin Scalia: make it as hard as possible for Republicans to oppose his nominee.  

In his first extended comments on the selection process, Obama said that he intends to pick an “indisputably” qualified candidate who should garner respect on both sides of the aisle. 

ADVERTISEMENT

"I am going to present somebody who indisputably is qualified for the seat and any fair-minded person, even somebody who disagreed with my politics, would say would serve with honor and integrity on the court,” Obama said Tuesday during a press conference in California. 

With just 11 months left in office, Republican leaders argue that Obama is in no position to fill the vacancy — particularly because Scalia’s successor is likely to determine the ideological tilt of the court. 

Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellTrump declares war on hardworking Americans with new budget request The Hill's Morning Report — AG Barr, GOP senators try to rein Trump in Overnight Health Care: Nevada union won't endorse before caucuses after 'Medicare for All' scrap | McConnell tees up votes on two abortion bills | CDC confirms 15th US coronavirus case MORE (R-Ky.) has said the next president should pick the conservative jurist’s replacement and pledged to reject any nominee that Obama picks. 

Even if they don’t succeed in pushing a nominee through, Obama and his Democratic allies want to make sure that Republicans pay an electoral price for their opposition.

Obama could ramp up the pressure on Senate Republicans by nominating someone they have voted for in the past, such as a lower-court judge. 

Most crucially, Democrats want to make sure that Republicans cannot find a legitimate reason to block the nominee. 

The president and his advisers at the White House began gaming out the nomination process behind the scenes shortly after Scalia’s death was announced on Saturday.

Obama and his aides have refused to comment on a potential short list, instead pointing to the hundreds of judges he has nominated to the federal courts. But that group, in itself, provides some clues.

As he has with other recent nomination battles with the Senate, Obama will likely look to candidates who have star-studded credentials, have a track record of working with Republicans and have already been confirmed by the Senate with relative ease. 

“Because we are in such a unique moment in history, with politics as polarized as ever, my understanding is that he will look for someone who can be a consensus nominee,” said Michele Jawando, vice president of legal progress at the Center for American Progress, which has close ties to the White House.  

That could mean nominating a qualified, moderate candidate Republicans would appear unjustified in blocking.

“It has to be someone who is un-opposable on the merits,” said Stephen Vladeck, a law professor at American University.

“Everyone is fixated on how this is a presidential election year, but it’s also a Senate election year,” Vladeck added. “For vulnerable Republicans, if there’s a perception the Republicans are obstructing an unobjectionable nominee, that could be a big issue in some contests in November.”

Obama cut off a reporter at the press conference who asked if his comments meant he would pick a “moderate.”

“No. I don’t know where you found that,” he said. “You shouldn’t assume anything about the qualifications of the nominee, other than they are going to be well qualified.” 

Another factor Obama is likely to consider is whether his pick would break racial or gender barriers on the court. 

If Obama succeeds in getting a minority or female justice on the bench, it would be the first time in history the majority of Supreme Court justices were not white men. Plus, blocking a nominee of color could be bad politics for Republicans. 

“I do think that is something that the White House will continue to consider,” said Jawando, former general counsel to Sen. Kirsten GillibrandKirsten GillibrandHillicon Valley: US hits Huawei with new charges | Judge orders Pentagon to halt 'war cloud' work amid Amazon challenge | IRS removes guidance on Fortnite game currency Gillibrand proposes creating new digital privacy agency Lobbying world MORE (D-N.Y.) “They have done the most of any White House on racial and gender diversity on the court, but there is more to be done [in other areas].” 

Scalia himself wrote in his dissent from the court’s June decision on same-sex marriage that the institution suffers from a lack of religious, professional and geographical diversity. 

D.C. Circuit Court of Appeals Judge Sri Srinivasan is one potential candidate who could fit the bill. 

Srinivasan, an Indian immigrant who was raised in Kansas, would be the first Hindu on the high court. He’s worked in the Obama administration and has proven to be a confirmable candidate in a GOP-controlled Senate. The upper chamber voted 97-0 in 2013 to put him on the federal appeals court.

Srinivasan, 48, served as a deputy solicitor general under Obama before being nominated to the D.C. Circuit. He also clerked for GOP-appointed Judge J. Harvie Wilkinson III and Supreme Court Justice Sandra Day O’Connor. 

But the pick could risk alienating progressive Democrats because Srinivasan represented Exxon Mobil and former Enron CEO Jeffrey Skilling while in private practice. 

Another potential pick is Jane Kelly, a judge on the 8th Circuit Court of Appeals who received a 96-0 confirmation vote in 2013. Kelly’s nomination to the appeals court was strongly backed by Senate Judiciary Committee Chairman Chuck GrassleyCharles (Chuck) Ernest GrassleyOvernight Health Care: Nevada union won't endorse before caucuses after 'Medicare for All' scrap | McConnell tees up votes on two abortion bills | CDC confirms 15th US coronavirus case Mnuchin defends Treasury regulations on GOP tax law Wyden, Mnuchin clash over Trump tax returns, Hunter Biden probe MORE (R-Iowa), which could improve her chances of at least receiving a hearing.

Merrick Garland, the chief judge on the D.C. Circuit, has been floated as a compromise choice if other options fall through. 

Going with a consensus candidate could rule out some possible nominees who are viewed as partisan choices, including California Supreme Court Justices Tino Cuellar and Goodwin Liu. 

If Obama wanted to diversify the high court in more ways than one, he could turn to Attorney General Loretta Lynch, the first African-American woman appointed attorney general. Unlike other possible choices who have appeared in news reports, Lynch does not serve on the federal bench. 

SCOTUSblog publisher Tom Goldstein wrote Sunday that Lynch is “the most likely candidate” because of her background and experience. 

Lynch was a bipartisan favorite as a hard-charging U.S. Attorney in New York, but she endured one of the longest delays in history to be confirmed as attorney general. The Senate vote largely fell along partisan lines.  

Homeland Security Secretary Jeh Johnson, an African-American and former Justice Department and Pentagon lawyer, has also received attention as a potential Scalia replacement. But he has come under fire from Republicans over Obama’s immigration enforcement policies.  

The White House and some Democrats predict that Senate Republicans would reverse course and hold hearings and a vote for an Obama nominee. 

After adopting McConnell’s stance over the weekend, Grassley on Tuesday would not rule out holding committee hearings on Obama’s Scalia replacement.

Sen. Thom Tillis (R-N.C.) on Tuesday said his party risked being labeled as obstructionist if they maintain their blanket opposition. 

But so far, McConnell has been backed by 2016 presidential candidates Sens. Ted CruzRafael (Ted) Edward CruzCruz 'impresses' his daughter with Chris Evans meeting Three Senate primaries to watch on Super Tuesday The advantage of paying for medical care directly MORE (Texas) and Marco RubioMarco Antonio RubioPeace Corps' sudden decision to leave China stirs blowback Lawmakers raise concerns over Russia's growing influence in Venezuela USDA takes heat as Democrats seek probe into trade aid MORE (Fla.) as well as four vulnerable GOP incumbents: Ron JohnsonRonald (Ron) Harold JohnsonFather of Parkland shooting victim calls on Congress to take action Senators to meet with Zelensky after impeachment trial Wyden, Mnuchin clash over Trump tax returns, Hunter Biden probe MORE (Wis.), Rob PortmanRobert (Rob) Jones PortmanGOP senators offering bill to cement business provision in Trump tax law Mnuchin defends Treasury regulations on GOP tax law Bipartisan lawmakers introduce bill to combat cyberattacks on state and local governments MORE (Ohio), Kelly AyotteKelly Ann AyotteGOP fears Trump backlash in suburbs Trump makes rare trip to Clinton state, hoping to win back New Hampshire Key endorsements: A who's who in early states MORE (N.H.) and Pat Toomey (Pa.)  

Republican leaders might see more downside to going back on their pledge to block any Obama nominee, something that could rile the conservative base months before voters go to the polls.  

Carl Tobias, a professor at the University of Richmond School of Law, isn’t betting that opposition from Republicans will soften. 

“There are lots more senators who are joining him,” Tobias said of McConnell. “I’m not very optimistic. I‘m trying to keep an open mind but there aren’t many minds open right now.”