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Continued thoughts on the next nominee (and impressions of Judge Ketanji Brown Jackson)

My thinking about the likely nominee to replace Justice Antonin Scalia continues to evolve.  His untimely death surprised everyone.  The White House is now compiling a list.  Democrats are gearing up to support whatever nominee is chosen.  Republicans are shaping their message in opposition to any possible candidate.

I discussed my sense of the political calculus in earlier post.  Here it is, along with some additional elaboration.  I follow it with an explanation for why my thinking on the next nominee has evolved from Ninth Circuit Judge Paul Watford to Attorney General Loretta Lynch (both of whom will almost certainly get serious consideration) to U.S. District Judge Ketanji Brown Jackson.

Republicans hold the ultimate power of confirmation.  So it makes sense to start our analysis with them.  There are fifty-four Republican senators.  Four would have to vote for the nominee on the merits.  Fourteen would have to vote to end a filibuster.  The former is unlikely.

More important, the latter is wildly implausible – unless Republicans end their filibuster not to conduct a genuine debate but simply to reject the nominee in an up-or-down vote.  Conservatives will lay down on the tracks on this issue.  A liberal vote could swing the Supreme Court to the left for decades.  (A Republican presidential victory would probably allow Republicans to move the Court back to the right by replacing Justice Ruth Bader Ginsburg and/or Justice Stephen Breyer, but you never know.)  A Republican senator who facilitates moving the Court to the left guarantees conservative enmity – and primary challenges – forever.  For evidence, look to the fact that Senator Kelly Ayotte immediately announced that she agreed that the Senate should not proceed on any nomination before the election.

Relatedly, conservatives view the Court as a critical issue for the turn-out of their own core voters –  in both the Republican primary (to support a nominee like Ted Cruz) and in the general election.  So they have every incentive to hold this line firmly.

The bottom line is that President Obama’s nominee is not getting confirmed before the election.  Maybe there will be a permanent filibuster.  Maybe Republicans will nominally allow the filibuster to be “broken,” then proceed to reject the nominee on the merits.  (That course is suggested by the announcement by Senator Chuck Grassley, chairman of the Senate Judiciary Committee, that he would await a nomination before deciding whether to hold hearings.)  Maybe a couple of Republicans who have specific concerns in purple states will even vote for the nominee.  But the entire process will be crafted to ensure that the nominee is not confirmed.

Now look at it from the administration’s perspective.  It is of course important for the president to pick a highly qualified nominee.  As a matter of principle and tradition, every president wants to do so as part of his legacy.  There is also of course a realistic chance that the nominee will be confirmed if a Democrat wins the presidential election.  So the new Justice’s legal abilities are critical.

Just as important, qualifications are obviously central to how the nominee is publicly perceived.  People will only rally around a candidate whom they think should get the job.  One particular kind of qualification is particularly valuable here:  that the nominee was previously confirmed without any objections by Republicans.  That “bumper sticker message” puts Republicans in a huge bind in attempting to block the nomination.

The nomination itself is part of the president’s legacy, even if partisan politics prevents confirmation.  In my opinion, that points to President Obama selecting a black nominee.  It just seems strange that our first black president – a Democrat who has emphasized diversity on the bench – would make three Supreme Court nominations, none of them black.  The unacceptable implied message is that there were no qualified black candidates.  It is less important, but the president’s historical legacy – and the Democratic Party’s long-term standing – would also be enhanced by nominating three women to the Supreme Court.

Beyond excellent qualifications and the president’s legacy, the pick is inherently political.  The administration will ask itself: who will best advance our interests?  To reiterate, the relevant “interest” – getting the nominee confirmed, which in this case is effectively impossible – is not the usual one.  There is no such thing as a “consensus” pick, because the only consensus for Republicans (who have the votes) is that the Senate will not confirm anyone the president picks.

The administration’s “interests” instead involve partisan politics.  Which nominee will best serve the Democratic Party’s interests in both the short term (the 2016 presidential and Senate elections) and the long term?

One political interest involves the ability to move quickly.  Each week that passes without a nomination brings us closer to the election.  That lets the Republican narrative that there should be no appointment before the election gain credibility and take hold.  So there is a strong incentive to go with a pick who is already known to the administration and who ideally has recently been vetted.

Beyond that, the politics are an exercise in figuring out how to generate votes, an issue which is not my strength.  But at a broad level, the goals are obvious:  persuade independent voters and motivate turnout among existing voters.  The easily identifiable demographic group of independents—particularly for the long term – is Hispanics.  So a nominee like Judge Adalberto Jordan of the Eleventh Circuit is certainly a possibility.

But as I said above, I think the president will have a material preference for this appointee to be black.  And the president of course already appointed the first Latina, Sonia Sotomayor.  So the administration has already gained some of the political benefits of a Supreme Court appointment with the Hispanic community.

I do think that independents will respond to concerns that extremists are blocking the orderly functioning of the government – here, the Supreme Court.  If the administration can put forward a highly qualified nominee and persuasively show that conservatives are preventing the Court from functioning properly for reason other than political gain, that message will probably have some force.

Beyond that, there is some tension between using the nomination to persuade political independents to support Democrats and using it to motivate core Democratic voters to turn out in the election.  An obviously moderate nominee may be appealing to independents, but fail to energize the Democratic base.  Conversely, a strong liberal may turn off independents.  The balance between those two would seem to lie in a candidate like Elena Kagan:  someone in whom the left has confidence but who cannot be caricatured as a wild-eyed liberal.

What other elements of the base are significant and susceptible to being motivated by a nomination?  In my opinion, black voters and women.  Blacks already voted in a higher proportion than whites in 2012.  But without Barack Obama on the ticket, that number naturally would go down.  And because blacks are such reliable Democratic voters, each percentage point in black participation is very important to the victory of a Democratic candidate.  That was a principal factor in my first suggesting that the nominee would be a highly respected, young Ninth Circuit judge – Paul Watford.

Recognize that the calculus may well be different in Senate races.  Indeed, it is possible to select a nominee with the micro-targeted goal of affecting the outcome in a single Senate contest.  But on the whole, I think the administration will likely focus on the presidential race and partisan politics broadly.

The nomination can also motivate female Democratic voters to turn out.  We still are in an era in which every important political appointment of a woman is notable.  A nomination of a woman would present the prospect of the Supreme Court coming virtually into balance, with five men and four women –  an historic achievement.  (The same points can be made in terms of persuading independent women voters.)

One female candidate for the nomination stands out in light of many of these factors:  Eighth Circuit Judge Jane Kelly, who was confirmed by a vote of ninety-six to zero, with the strong support of Senator Grassley.  So she will almost certainly be a serious candidate

By contrast, I think that these factors point against the nomination of D.C. Circuit Judge Sri Srinivasan.  Judge Srinivasan is almost a lock to get a Supreme Court appointment in a Democratic administration, because he is so very widely respected and admired.  If it were possible to select a consensus candidate whom Republicans would actually confirm, he would surely be it.  He would be the first South Asian Justice.  He also has the great advantage of having been unanimously confirmed.  But he generates very little political advantage.  He is – to state the obvious – not a woman; and while Asian Americans are an important, independent part of the voting population, I think the administration will place less weight on them than blacks.

More important, Judge Srinivasan is unlikely to motivate the Democratic base much, particularly among interest groups.  His appointment to the D.C. Circuit was principally delayed by the left, not by conservatives.  He clerked for two judges who were Republican appointees.  Like many Washington lawyers, he worked for a corporate law firm that represented corporate interests.

I instead think that the president will be inclined to appoint a highly qualified black woman to the Court who has been recently confirmed.  In a previous post, I said that the most likely candidate is Attorney General Loretta Lynch.  I continue to think her credentials are strong.  But it is worth noting that her confirmation vote in the Senate was close (because of Republican votes), so the administration could not make the point that she had been uniformly supported in the past.

There is another potential sticking point – one on which people directly involved in Democratic Supreme Court nominations are torn.  The confirmation process would give Republicans the excuse to demand a wide array of documents that are related – maybe tangentially – to Lynch’s service as attorney general.  These could include documents relating to decisions to initiate investigations and prosecutions.  Benghazi is one example among many.

In the view of some, that is a deal-breaker for the nomination.  The administration won’t want to expose itself to those demands.  Others think it could be worked out, as it was with respect to documents from Elena Kagan’s time as Solicitor General.

To my mind, the prospect of such document demands makes the nomination unlikely, although for a slightly different reason.  The administration’s goal will be to put forward a nominee whom Republicans cannot credibly oppose – any serious excuse to oppose the nomination substantially undermines the message that Republicans are treating the nominee unfairly and undermining the Supreme Court’s orderly functioning.  But Republicans would have little difficulty framing opposition to – and ultimate rejection of – Lynch in terms of the administration’s refusal to provide documents that Republicans need to assess such an important nomination.

If not Lynch, who?  There does not seem to be any obvious candidate in the federal courts of appeals.  But there is a district judge.

Ketanji Brown Jackson is a judge on the U.S. District Court for the District of Columbia.  She was confirmed by without any Republican opposition in the Senate not once, but twice.  She was confirmed to her current position in 2013 by unanimous consent – that is, without any stated opposition.  She was also previously confirmed unanimously to a seat on the U.S. Sentencing Commission (where she became vice chair).

She is a young – but not too young (forty-five) – black woman.  Her credentials are impeccable.  She was a magna cum laude graduate of Harvard College and cum laude graduate of Harvard Law School.  She clerked on the Supreme Court (for Justice Stephen Breyer) and had two other clerkships as well. As a lawyer before joining the Sentencing Commission, she had various jobs, including as a public defender.

Her family is impressive.  She is married to a surgeon and has two young daughters.  Her father is a retired lawyer and her mother a retired school principal.  Her brother was a police officer (in the unit that was the basis for the television show The Wire) and is now a law student, and she is related by marriage to Congressman (and Speaker of the House) Paul Ryan.

Judge Brown Jackson’s credentials would be even stronger if she were on the court of appeals rather than the district court and if she had been a judge for longer than three years.  One person whom I know who has been deeply and directly involved in prior confirmations is confident the president would not nominate someone from the district court.

I disagree because these are special circumstances.  It is easy to see a political dynamic in which candidate Hillary Clinton talks eagerly and often about Judge Brown Jackson in the run-up to the 2016 election, to great effect.

Recommended Citation: Tom Goldstein, Continued thoughts on the next nominee (and impressions of Judge Ketanji Brown Jackson), SCOTUSblog (Feb. 16, 2016, 5:25 PM),