WASHINGTON, DC — Barack Obama's Supreme Court appointments — he could make several, or none, in his second term — will be key elements of his legacy. Rare opportunities that will last long beyond his presidency.
Four justices — Antonin Scalia and Anthony Kennedy, both appointed by President Reagan; Ruth Bader Ginsburg and Stephen Breyer, both appointed by President Clinton — are older than 70. Ginsburg is the oldest, nearing 80 and twice having been treated for cancer.
In the first two court vacancies during Obama’s presidency, he named Justices Sonia Sotomayor and Elena Kagan to the bench — replacing now-retired Justices David Souter and John Paul Stevens
One key, if unofficial, variable in who Obama might name next: Who the new appointee replaces, a factor that could impact everything from the gender to the ideology of any nominee.
“Depends who quits, if anyone," noted NPR's veteran Supreme Court reporter, Nina Totenberg.
But close watchers of the court have begun to settle on the frontrunners for the next open seat — though not all of them would talk about them publicly.
“I’d much prefer to convey my thoughts on subjects like this directly to him and not in any public venue or forum," Harvard Law School professor and Obama adviser Laurence Tribe told BuzzFeed.
SCOTUSblog’s Amy Howe, Above the Law’s David Lat, Slate’s Dahlia Lithwick, Jenner & Block partner Paul Smith, University of Chicago law professor Geoffrey Stone and UCLA law professor and blogger Eugene Volokh provided BuzzFeed with five (or more) potential picks.
Only four people were named by half or more of BuzzFeed’s panel — some liberal champions who would thrill the left, others compromise candidates who could face simpler confirmations. Those front-runners:
• Kamala Harris, 48: The California attorney general, Harris was elected to the job in 2010, when California’s statewide victories were among the only Democratic highlight in an otherwise bleak election for the left. Harris, a former line prosecutor who was elected San Francisco district attorney, has been named regularly as a possible Supreme Court pick, and she is a longtime Obama backer. As she said while campaigning for the president in North Carolina, “I've been supporting the president for a long time; he's been supporting me for a long time.” Harris, like Obama, comes from a multiracial background — her father is black, her mother Indian — and her nomination would fit in the mold of his stated “commitment to ensure that the judiciary resembles the nation it serves.”
• Pam Karlan, 53: A Stanford Law School professor, Karlan is on the administration’s judicial radar and is a leading voice on the legal left, making her a perennial favorite pick for liberals. That fact alone would lead to some potential difficulties for such a nomination, but Karlan’s undeniable legal prowess keeps her on people’s minds. “Longingly” so, Lithwick said. Unless the administration — and, thus, Obama — decide to take a more aggressive position on judicial nominations in his second term, a Karlan nomination would seem to be unlikely. Karlan, an out member of “the LGBT crowd,” told The New York Times that “the White House asked her in February 2009 if she was interested in being considered” for a federal appeals court spot, but she never heard anything further from the administration.
• Goodwin Liu, 42: A justice on the California Supreme Court, Liu would appear to be one of the least likely Supreme Court nominees from Obama given that his nomination to the Ninth Circuit Court of Appeals was scuttled by Republican opposition in 2011. Like Karlan, Liu has been a leading voice on the academic legal left — but his removal from that world due to California Gov. Jerry Brown’s appointment of Liu to California’s Supreme Court months after the Senate rejected his federal appeals court nomination could give comfort to some Republicans whose voiced concern was his lack of practical legal experience. On the other hand, some opposition to the young, Asian-American Liu’s Ninth Circuit nomination was doubtless because of the very fact that he would be an attractive Supreme Court nominee if given an appeals court perch.
• Paul Watford, 45: A judge on the Ninth Circuit Court of Appeals, Watford was named by more of the panel than anyone else — and is by far the least well-known possibility of the four. Nominated to the appeals court by Obama in 2011, Watford was confirmed by the Senate in May — with support from nine Republicans, including Sens. John McCain and Lindsey Graham. Before being named to the appeals court, Watford, who is black, worked in private practice in California but also spent some time working as an Assistant U.S. Attorney in the Clinton administration. Previously, Watford clerked for Ninth Circuit Judge Alex Kozinski and Supreme Court Justice Ruth Bader Ginsburg — notable because Kozinski is one of the leading conservative appeals court judges, and Ginsburg is a solid liberal vote on the Supreme Court.
Nomination-guessing being what it is, however, the pool of candidates from which Obama will be selecting any nominee is much larger.
Seven other names were mentioned by more than one of BuzzFeed’s panelists. They include three current federal appeals court judges: Merrick Garland of the D.C. Circuit, Adalberto Jordan of the Eleventh Circuit, and Jacqueline Nguyen of the Ninth Circuit. Also in this group are Caitlin Halligan, whose nomination to the D.C. Circuit was blocked in 2011 but who was again nominated to the post by Obama earlier this year; DC Circuit nominee and administration appellate lawyer Sri Srinivasan; former Obama administration acting Solicitor General Neal Katyal; and former administrator of the Office of Information and Regulatory Affairs for Obama and law professor Cass Sunstein.
The wild card possibilities named by one panelist each were former Office of Management and Budget general counsel Preeta Bansal, California Supreme Court Chief Justice Tani Cantil-Sekauye, Federal Communications Chairman Julius Genachowski, former Michigan Gov. Jennifer Granholm, Sen. Amy Klobuchar of Minnesota, Ninth Circuit Judge Mary Murguia, U.S. District Court Judge Paul Oetken of Manhattan, Massachusetts Gov. Deval Patrick, former Stanford Law School dean Kathleen Sullivan and Seventh Circuit Judge Diane Wood.
In any event, elections have consequences, and judicial nominations are among the clearest.
Former George W. Bush administration Solicitor General Ted Olson — who played Vice President Biden in Wisconsin Rep. Paul Ryan’s vice-presidential debate prep — provided no names to BuzzFeed, simply noting of Obama’s judicial selection process: “He won’t be checking in with me.”