Multiple media reports say that there are only five potential nominees to fill the Scalia seat: Ketanji Brown Jackson, Merrick Garland, Jane Kelly, Sri Srinivasan, and Paul Watford. In this post, I assume that is correct.

My best guess is that the choice will come down to whether the president concludes that Judge Brown Jackson’s service on a district court and on the Sentencing Commission give her sufficient objective qualifications for the job. If so, I believe he will pick her. If not, I think he will pick Judge Srinivasan, perhaps nominating Judge Brown Jackson at the same time to fill Judge Srinivasan’s seat on the D.C. Circuit.

Here is my thinking. Four core criteria will drive the decision, in order of importance: objective qualifications; the appointment’s legacy; politics; and confirmability. The fact that confirmability is the least important factor in this special circumstance – because Republicans control the Senate and they have made clear that no nominee is actually going to get confirmed – is important to my view that Judge Brown Jackson is the more likely nominee.

With respect to each factor, there are several considerations.

Objective qualifications. Each of the five is easily qualified by historical standards, and each is well respected. The nominee’s qualifications principally are (in order of importance) his or her current position, tenure, previous positions, and education. I rank the candidates: (1) Merrick Garland (long-serving appellate judge, chief judge of the D.C. Circuit, and former senior DOJ official); (2) Srinivasan (appellate judge and former DOJ official); (3) Watford (appellate judge); (4) Kelly (appellate judge); and (5) Brown Jackson (district court judge and former vice chairman of the U.S. Sentencing Commission). Of the five, only Garland’s qualifications truly stand out as distinct.

Legacy. The appointment’s legacy principally turns on the extent to which the nominee would have a lasting impact on the Court’s jurisprudence (including the degree of confidence in the nominee’s ideology), the extent to which the nomination would be a “first” and (relatedly) make the Court more representative of the country, and the length of time the nominee would likely serve. I rank the candidates: (1) Brown Jackson (the first African-American woman and likely the most liberal); (2) Srinivasan (the first Asian American); (3) Kelly (the Court’s fourth female member); (4) Watford (the third African-American Justice and an ideological counterpoint to Justice Thomas); and (5) Garland (a white man and the oldest candidate).

Politics. By refusing to consider any nominee until after the next president is sworn in, Republicans have put the nomination at the center of the presidential race. I believe they are right that the Senate majority can reject any nominee for any reason. (I also believe they are invoking the least legitimate reason possible – the fact that this is the last year of the president’s term – given that the Constitution contemplates appointments in that year and every historical precedent weighs against rejecting a nominee for this reason.) But while the Constitution gives Republicans this blanket power, it imposes one very important check: the public can decide whether to hold Republicans accountable so that they may (or may not) pay a massive political price for exercising it. So picking a nominee in part based on electoral considerations is every bit as legitimate as Republicans’ refusal to consider the nominee in the first place.

Politics in this context includes the benefit of the nomination to the Democratic presidential candidate, which in turn includes the ability to characterize Republican opposition as outrageous and the extent to which the nomination will drive turnout for Democratic voters disproportionate to Republican voters. It also includes some respect for whom the next Democratic presidential candidate would likely want to nominate, because that candidate (having embraced the Supreme Court nomination during the election) will likely feel an obligation to nominate the same person again. Politically, I rank the candidates: (1) Brown Jackson (an African-American woman, particularly important to Hillary Clinton, with two unanimous confirmations), (2) Kelly (a woman, with a unanimous confirmation), (3) Srinivasan (Asian American, with a unanimous confirmation), (4) Watford (African American) and (5) Garland (white man).

Confirmability. As I mentioned at the top, confirmability plays a relatively minor role in my thinking. The nominee is not going to be confirmed, at least unless and until a Democrat wins the presidency in November. So there is no point to nominating someone on the ground that he or she can attract Republican votes.

That fact creates a second distinct feature of confirmability for this appointment. The relevant question is essentially who can be confirmed in the next Senate, not this one. And given the trajectory of the party nominations, there is a realistic chance that Democrats will retake the Senate. That puts on the table the prospect of confirming a materially more liberal candidate than could get through the current Senate. That is so because, in response to Republicans’ refusal to consider this nominee, a Democratic Senate majority would exercise the nuclear option and end the filibuster for Supreme Court nominations. (The prospect that the next Justice will end up being materially more liberal is the other way that conservatives may end up paying a huge price for this tactic.) But because the fate of the Senate majority is uncertain, I don’t give it great weight as a factor.

On the whole, I rank the confirmability of the nominees: (1) Garland (essentially, from central casting), (2) Srinivasan (regarded as a moderate Democrat), (3) Kelly (who had the strong support of the Republican chairman of the Judiciary Committee), (4) Brown Jackson (difficult to oppose given the combination of her race and gender), and (5) Watford.

All those four factors also have an echo effect in terms of the advocacy groups and Washington power players who will push for particular nominees. All have their own agendas and views on who would be the best choice. Generally speaking, I rank the advocacy among Washington elites as: (1) Srinivasan (regarded in Democratic legal circles as the best candidate, and superior to Garland only because of his age), (2) Garland (very deeply respected, even if he would not be among the Court’s most liberal Justices), (3) Brown Jackson (known to D.C. lawyers), (4) Watford (known to some D.C. lawyers, but not many), and (5) Kelly (best known for her support from Grassley, which ironically is not very relevant now).

I rank the support for the nominees among advocacy groups as: (1) Brown Jackson (the choice of most civil rights groups), (2) Kelly (would have the strong support of women’s groups), (3) Srinivasan (advocated by Asian-American organizations), (4) Watford (would be supported by civil rights groups), and (5) Garland.

It makes no sense to treat the choice as a math problem. That’s particularly true because the president will weigh different factors differently and also disagree with my rankings of the candidates. But on the whole, the numbers do separate Brown Jackson and Srinivasan as distinct from the other three. Garland would be the third most likely nominee statistically, but I think that his age will be decisive in any close choice.

In the end, I think the president either will or won’t discount Brown Jackson because she alone is not an appellate judge. If he does not treat that as an important consideration, I think he will pick her. For the reasons above, I give her the slight edge. It’s also important to recognize that there is a bit of a legacy to the Srinivasan nomination to the D.C. Circuit. His nomination is one of the few that involved objections within a core Democratic constituency. Labor groups in particular slowed his appointment because of his work at a D.C. corporate law firm. Their concerns were unfounded, but they were also never completely resolved.

As I’ve written before, I’m reliably told by someone deeply involved in prior nominations that the president simply will not appoint a district judge. If that is correct, then I think the nominee will likely be Srinivasan. If so, the administration could get some of the benefits of the Brown Jackson appointment by simultaneously nominating her to fill Srinivasan’s seat on the D.C. Circuit. That would position her well for a later Supreme Court appointment.

Posted in Featured, The potential nominees to succeed Justice Scalia

Recommended Citation: Tom Goldstein, Handicapping the five potential nominees, SCOTUSblog (Mar. 11, 2016, 9:14 AM), http://www.scotusblog.com/2016/03/handicapping-the-five-potential-nominees/