(L-R) Patricia Millett, Sri Srinivasan, Paul Watford, Amy Klobuchar, and Merrick Garland. (Bill Clark / Getty Images (Watford); Diego M. Radzinschi)
If President Barack Obama was right when he said recently that “we’re going to have Supreme Court appointments” before his presidency ends, then who might they be­ — and could he get them confirmed in an era of extreme partisanship?
Obama’s comments during a Martha’s Vineyard fundraiser on Aug. 11 were enough to kick-start the perennial guessing game that precedes rare and highly prized Supreme Court vacancies. Patricia Millett, Sri Srinivasan and Paul Watford, who were each Obama nominees to U.S. courts of appeals, quickly rose to the top of the early betting list as potential appointees.
The White House promptly tamped down speculation, insisting that the president was speaking in general terms, without any inside knowledge of imminent departures from the court. Obama made the statement to bolster his pitch that “I need a Democratic Senate” to be elected in November to get things done during the remainder of his tenure as president.
That political overlay makes the prediction game harder than usual, dependent on a number of variables, including timing, the nominee’s race, gender and background — and most importantly, whom the nominee would replace.
Prime example: In interviews this summer, 81-year-old Justice Ruth Bader Ginsburg has repeated her insistence that she has no plans to leave soon, although she hinted at a timetable that could mean retirement next summer, regardless of which party dominates the Senate.
‘THE LEAST CONTROVERSIAL SCENARIO’
If Ginsburg is the justice Obama ends up replacing, “that would probably be the least controversial scenario,” said conservative strategist Carrie Severino of the Judicial Crisis Network. “It would be seen as trading her in for a younger justice Ginsburg.”
Liberals are not as sure it would be that easy. But one thing seems almost certain: An Obama nominee to replace Ginsburg would be a woman, so the number of female justices would not drop to two out of nine. D.C. Circuit Judge Millett, or U.S. Sen. Amy Klobuchar, D-Minn., are frequently mentioned names. Klobuchar could benefit from the tradition — sometimes ignored — that senators confirm their own for other positions.
“It would shock me if the president were to appoint a man” to replace Ginsburg, said Thomas Goldstein, an avid prognisticator and Supreme Court advocate with Washington’s Goldstein & Russell. “Paul and Sri will have to stand by and wait.”
Goldstein was referring to Ninth Cir­cuit judge Watford, an African-American confirmed in 2012, and Srinivasan, confirmed unanimously to the D.C. Circuit by the Senate last year. Srinivasan was born in India, so nominating him would give Obama the distinction of appointing the first Asian-American justice.
Additional diversity factors could affect the menu of nominees. “Having one black justice on the Supreme Court should not be viewed as a ceiling,” said Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund. She mentioned Fourth Circuit ­judges Roger Gregory and James Wynn Jr., and Minnesota Supreme Court Justice Wilhelmina Wright as possible nominees.
The dynamics change completely if, say, conservative Antonin Scalia or swing-vote Anthony Kennedy, both 78, depart during the next two years. That’s because a liberal or moderate replacement for either could flip votes on key court controversies. “Whoever gets to replace Kennedy, it’s World War III,” Severino said.
But if the vacancy occurs in 2016, forget World War III. The battle might be over before the first shot is fired, because of a hoary tradition known as the “Thurmond Rule,” under which Supreme Court nominations are delayed or halted in a presidential election year.
“Even the best nominees run into trouble,” said Michael Gerhardt, a University of North Carolina School of Law professor and expert on Supreme Court confirmations.
When or whether the window would close on an Obama Supreme Court nomination in 2016 is up for debate. If Republicans sat on an Obama nomination for months or more, Democrats would probably try to shame them into taking a vote. “Letting a vacancy linger would be a disservice to the country,” said Caroline Fredrickson of the liberal American Constitution Society.
Jason Abel, a former staffer for Democratic senator Charles Schumer, said, “I certainly hope it isn’t hopeless” for a nominee to be confirmed in 2016. But to accomplish it, he said, “there will have to be much more consultation” between Obama and senators, including Republicans. Abel is of counsel to Steptoe & Johnson LLP.
Another complication will be the fallout from the recent battle between Senate Democrats and Republicans over confirmations in general, said Rutgers University political scientist Ross Baker, a former adviser to Senate Judiciary Committee chairman Patrick Leahy, D-Vt.
Democrats led by Senate Majority Leader Harry Reid of Nevada invoked the “nuclear option” last November, changing the rules to bar filibusters against confirmations. But the new rules made an exception for Supreme Court nominees, which means that 60 votes are needed to overcome a filibuster — a difficult hurdle, especially if Republicans become the majority party after the November election.
Republicans “will definitely hold the line on Supreme Court nominations,” said Baker, author of “Strangers on a Hill,” a 2007 book about Congress and the Supreme Court. “Even if Obama selected a poster-boy of the Federalist Society, the Republicans would filibuster that person, thinking that Obama was trying to sneak past them another William Brennan.”
Miller Baker of McDermott Will & Emery, a former aide to Sen. Orrin Hatch, R-Utah, agreed that “if there is a vacancy, Harry Reid is going to rue the day that he made an exception for Supreme Court nominees.”