A look at potential replacements for Justice Scalia

February 19, 2016

Security guards walk the steps of the Supreme Court before Justice Elena Kagan's investiture ceremony in WashingtonJustice Scalia’s death continues to dominate headlines, but more in the form of the looming battle over his potential replacement.

After all, not counting Justice Alito’s replacement of Justice Sandra Day O’Connor ten years ago (which shifted the Court rightward), the ideological balance of the Court hasn’t truly shifted in decades.  If President Obama is able to successfully get a nominee confirmed, it would effectively create a liberal majority on the Court – one which could (and, likely would) result in significant conservative losses on issues such as the Second Amendment and campaign finance regulation (given how outspoken the current liberals on the Court have been in their opposition to Citizens United, a fifth liberal would make that ruling’s demise all but inevitable).

So the stakes are high on this one.  Probably higher than they’ve been for a Supreme Court nomination in recent history.  After all, the last death of a sitting justice was Chief Justice Rehnquist in 2005, during the administration of President George W. Bush, who was able to replace him with a like-minded conservative.  There’s almost no chance of President Obama replacing Justice Scalia with a like-minded conservative; the best that conservatives could hope for is a moderate.

But considering that Republicans have vowed to block any nominee that President Obama puts forward, it doesn’t really seem as though the Court will have any  replacement for Justice Scalia until January 2017 – at the very earliest.

In spite of the Republicans’ vows of obstruction, Obama has promised to push forward with the process, nominating someone who is “indisputably … qualified for the seat.”

Naturally, speculation has been running rampant about just who the nominee will be.

Sri SrinivasanOne of the names topping many lists is Padmanabhan Srikanth “Sri” Srinivasan, an Indian-American judge on the U.S. Court of Appeals for the District of Columbia Circuit since May of 2013 – when he was confirmed by the Senate by a vote of 97-0.  Srinivasan clerked for Justice O’Connor during the 1997-1998 term, and served as an assistant to the solicitor general from 2002 until 2007 – during the Bush administration (you can view more about Justice Srinivasan and the cases he’s worked on (both as an attorney and a judge) on Westlaw Profiler).

In addition to his impressive legal chops, Srinivasan has an inspiring personal story as an immigrant: he was born in Chandigarh, India and his family emigrated to Lawrence, Kansas when he was very young.  He graduated from Stanford University in 1989, and Stanford Law School and Stanford Graduate School of Business in 1995 (earning his JD/MBA dual degree).  If confirmed, Srinivasan would be the first Indian-American Supreme Court justice, along with the Court’s first Hindu one.

In short, Srinivasan would be an ideal candidate for nomination to the Supreme Court – under normal circumstances.  And as we’ve already established, these circumstances are anything but ordinary.  Given the fact that Srinivasan’s nomination to the Court (under a Democratic administration, anyway) is largely regarded as an eventuality by most Court observers, it may be difficult to convince Srinivasan to accept a nomination that Republicans have promised would be “dead on arrival” in the Senate.  And such a failure to be confirmed would make a future nomination extremely unlikely.

Loretta LynchThe other name on the top of many short lists is U.S. Attorney General Loretta Lynch.  She graduated cum laude from Harvard College in 1981 and obtained her J.D. from Harvard Law School in 1984 (for more background on Lynch, you can view her background on Westlaw Profiler).  Confirmed last year to the post after a long-delayed nomination process, Lynch was able to generate support from ten Republican senators to secure confirmation.  Whether Lynch would again be able secure enough Republican support for a Supreme Court nomination seems less likely, but, if confirmed, Lynch would be the first black woman to serve on the Court.  And opposing such a nomination – especially when Lynch was extensively vetted and confirmed by the Senate less than a year prior – may have grave electoral consequences for Republicans.

On the other hand, as Tom Goldstein of SCOTUSblog notes, 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.”  Goldstein notes that this would be “a deal-breaker for the nomination.”

Politically, though, Goldstein still believes that nominating a black woman for the post would help the Democrats the most this fall at the polls, and suggests Judge Ketanji Brown Jackson of the United States District Court for the District of Columbia.  Although Goldstein admits that one of his sources is “confident the president would not nominate someone from the district court,” he maintains that Jackson is the strongest candidate given these circumstances.

But considering how unique these circumstances truly are, it’s really anyone’s guess who the nominee will be.  Here are a few others being discussed along with a link to their information on Westlaw Profiler:

Paul Watford

Jacqueline Nguyen

Jeh Johnson

Amy Klobuchar

Merrick Garland

Sheldon Whitehouse