The White House is considering nearly a half-dozen relatively new federal judges for President Obama’s nomination to the Supreme Court, focusing on jurists with scant discernible ideology and limited judicial records as part of a strategy to surmount fierce Republican opposition.
As Obama prepares for what probably will be his last opportunity to try to shape the high court after the sudden death of Justice Antonin Scalia, the president faces an unprecedented hurdle, with the Senate’s GOP majority vowing to ignore any nominee he proposes.
Based on interviews with legal experts and others, including some who have spoken in recent days with Obama administration officials involved in the vetting process, the president is leaning towards a sitting federal judge to fill the vacancy – and probably one the Senate confirmed with bipartisan support during his tenure. . These insiders, who insisted on anonymity to discuss private conversations, noted that the administration is winnowing its list of candidates – but could add more.
The candidates under consideration include two judges who joined the influential U.S. Court of Appeals for the District of Columbia Circuit in 2013, Sri Srinivasan and Patricia A. Millett; Jane L. Kelly, an Iowan appointed that year to the U.S. Court of Appeals for the 8th Circuit; Paul J. Watford, a judge since 2012 on the California-based U.S. Court of Appeals for the 9th Circuit; and a lower-court judge, Ketanji Brown Jackson, appointed in 2013 to the U.S. District Court for the District of Columbia.
Each candidate would offer a distinctive attribute for a president with a penchant for fostering diversity. Srinivasan would be the high court’s first Asian American and first Hindu. Kelly would be the first with a public defender’s background. Watford or Jackson would add a second African American to the court. And as with Obama’s last nominee in 2010, Justice Elena Kagan, Millett would increase the number of women on the nine-member court.
None has carved out a distinct identity in their views on the role of law or their positions on any divisive legal question facing the nation and the courts, according to an examination of the judges’ public statements and writings, their mentors and their career paths.
In the current climate of acrid partisanship, White House officials regard the opaqueness of their views as a selling point, say those familiar with the administration’s thinking.
White House officials have declined to discuss details of the president’s decision-making, other than to say that Obama intends to make a timely nomination. A White House spokeswoman, Brandi Hoffine, added: “The list is not closed at this point, and the president continues to review materials on various potential nominees.”
Another name being vetted by the White House is one with a longer judicial record: Merrick Garland, chief judge of the U.S. Court of Appeals in Washington. He is a moderate who has served on the court for nearly two decades and was considered by Obama for a previous Supreme Court vacancy.
According to one person knowledgeable about the vetting process, the White House initially thought about Attorney General Loretta Lynch – who would satisfy the eagerness of some civil rights groups for an African American female nominee – but she is no longer under consideration.
Some watchers of previous Supreme Court confirmation fights have speculated that the president might prefer to select a recognized liberal who could excite Democratic voters in an election year.
But those familiar with the thinking of White House officials said that Obama is disinclined to name an outspoken progressive as a probable sacrificial lamb. Instead, they said, the White House believes it may be able to apply the greatest pressure onresistant Republican senators by choosing a highly qualfied federal judge regarded as moderate and non-ideological.
Even one of the moderate candidates, administration officials think, could significantly shift the balance of the court after Scalia, the outspoken anchor of the court’s conservative wing for three decades.
The White House’s preference for a nominee with few ideological fingerprints stands in contrasts with this year’s presidential candidates, Republican and Democratic alike.
The Republican front-runner, billionaire businessman Donald Trump, has said he would appoint justices with conservative positions, asking potential nominees about their view on abortion and selecting ones who support gun-ownership rights and allowing business owners who oppose contraception on religious grounds not to offer such coverage to their employees. The leading Democrat, former secretary of state Hillary Clinton, has said that she would favor nominees who support abortion rights, same-sex marriage, gay rights, voting rights and overturning Citizens United, the court’s 2010 campaign finance decision.
But among the judges Obama is considering, none was asked about any of those issues during their Senate confirmation hearings for lower courts. Nor is there any other public record of their views.
During their confirmations over the past few years, the judges under consideration for the high court carefully avoided disclosing views on the role of the law or on specific legal issues.
Such reticence was on display on an uncharacteristically hot April afternoon of 2013, when Srinivasan sat alone at the witness table in a resplendent paneled hearing room, facing Senate Judiciary Committee members weighing his nomination to the D.C. Circuit.
One of the first questions was predictable: Briefly describe your judicial philosophy. “I do not have an overarching, grand, unified judicial philosophy that I would bring with me to the bench if I were lucky enough to be confirmed,” Srinivasan replied. In a written follow-up, Sen. Ted Cruz, R-Texas, a new senator and an old friend of Srinivasan’s dating back to their law clerk days, took another stab at the question, asking which Supreme Court justice of the past half-century had a philosophy most akin to his own. Although a seasoned Supreme Court practitioner, Srinivasan replied that he could not answer. “I do not have sufficient familiarity with the body of decisions of any particular justice of the Warren, Burger or Rehnquist Courts,” he wrote. Srinivasan went on to a Senate vote of 97-0 in favor of his confirmation.
Most of the judges being considered by the White House have been on the bench for two to four years – not much time to have amassed records of opinions. In comparison, of the seven current justices with previous judicial experience, their average tenure on the bench when they were nominated to the Supreme Court was 11 years.
Brief as the tenures may be of those the White House is vetting, their judicial work doubtless will be scrutinized by the White House and its allies and by the administration’s opponents for clues to their leanings. The judges have written relatively few opinions that have attracted much public attention, but several have received notice.
Last year, in a case involving whether the D.C. Department of Corrections had violated the disability rights of a deaf inmate, Jackson excoriated the District and ordered damages to be paid to the inmate, writing that the city had shown a “willful blindness” to the inmate’s need for accommodation and had made a “half-hearted attempt . . . far short of what the law requires.”
In a free-speech case, Srinivasan wrote an opinion last year that protesters outside the Supreme Court building were not entitled to stand closer than the sidewalk. In 2014, Watford voted with the majority in a 9th Circuit ruling striking down an Arizona law that had automatically denied bail to people charged with crimes if they were in the United States illegally.
Indistinct ideology has become a norm at judicial confirmation hearings of the past three decades after the unsuccessful nomination by President Ronald Reagan of Robert Bork, who was open about his conservative views. Since then, “people who are outspoken on any discernible point on the spectrum of ideologies are out of the question,” said Laurence H. Tribe, a Harvard professor of constitutional law who was a mentor to Obama as a law student. And, Tribe said, appeals court judges, some of whom may hold ambitions for a promotion to the high court, “tend to be considerably more careful” than in the past in their opinions. In addition to ideological records so faint as to be almost imperceptible, several of the possible nominees have worked in Democratic and Republican administrations and for judges appointed by president of both parties.
Srinivasan was a law clerk to two Republican-appointed judges: J. Harvey Wilkinson on the Richmond-based U.S. Court of Appeals for the 4th Circuit – along with Cruz, a presidential candidate – and former Supreme Court justice Sandra Day O’Connor. Srinivasan was an attorney in the Solicitor General’s office under President George W. Bush and Obama.
Kelly clerked for two appellate judges – a Democratic and a Republican appointee. Millett, on the D.C. Circuit, worked in the Solicitor General’s office under President Bill Clinton and Bush. And Watford, on the 9th Circuit, clerked for a Reagan appointee to that court and then for Supreme Court Justice Ruth Bader Ginsburg.
Conservative veterans of Supreme Court nomination fights reject the idea that Obama is preparing to nominate someone without ideology. “What Obama is trying to do is find someone he knows will be a very reliable liberal voice on the court. But he’s going to present them as if they were moderate,” said Carrie Severino, chief counsel for the Judicial Crisis Network, a conservative legal group, which has hired a research firm to help excavate the records of potential nominees. She cited a plea deal that Kelly secured as a public defender for a child predator.
Other nominees were as reticent as Srinivasan during their confirmations. As part of her 2013 confirmation to the 8th Circuit, Kelly was asked on a Senate questionnaire to supply copies of more than 30 talks, mostly on mundane legal topics she said she had given since 1996. “It is my general practice to speak from rough handwritten notes, which normally are not saved in my files,” she wrote.
Several months later, another Democratic senator asked Millett at her confirmation hearing how her religious faith would shape her conduct as a judge. Replying that “my religious faith is the biggest part of who I am, and I am proud of that,” Millett praised the Constitution as a “very precious system of justice” and said, “I would never betray that incredibly precious system by injecting personal beliefs into decision-making.”
Srinivasan has been perhaps the most difficult to discern. He has represented former Enron president Jeffrey Skilling and was part of the legal team that worked on behalf of former vice president Al Gore in the disputed 2000 presidential election. In his Senate confirmation questionnaire, he listed just two published writings in the previous two decades. At his hearing, he was asked about one of them – an article he co-wrote criticizing Indiana’s voter-ID law.
The article, he replied, “was in our capacity as lawyers representing a client.”
(c) 2016, The Washington Post · Amy Goldstein, Jerry Markon, Sari Horwitz
Join the official YWN WhatsApp status
One Response
To tempt the Republicans to take the nomination seriously, Obama needs to pick a conservative and/or Republican. If the Republicans think there is a chance they’ll control the White House and/or the Senate after next January, they have no reason to confirm anyone other than a conservative.
Most Democrats are very confident they will control the White House and the Senate after the election, and Obama isn’t likely to be in a compromising mood, unless it looks like the Republicans will win the election.