Below is my column in USA Today on some of the possible nominees to fill the vacancy left with the death of Associate Justice Antonin Scalia. There is a long list of potential nominees and only some are discussed in this column. One of the more interesting prospects is Jane Kelly from the Eighth Circuit who would bring badly needed trial experience to the Court and particularly a rare criminal defense background. As a threshold matter, it is worth noting that the current chaos that we are witnessing over Scalia’s replacement is the result of a long-standing flaw on the Court. As I have argued for many years, our Supreme Court is demonstrably too small and should be expanded by Congress to 19 members – roughly the size of other large nations – to avoid so much power being concentrated in so few hands. If the Court was larger, there would likely be no question that President Obama could get a nominee confirmed because there would be greater turnover on the Court and less at stake with each justice. However, as it stands, even a moderate nominee would move the center of gravity of the Court significantly to the left and would likely produce a host of sweeping changes on gun rights, abortion, affirmative action, and other areas. That is something that the Republicans have pledged to bar, at least until we know who the next president will be.
So our dysfunctionally small Court has left us in another dysfunctional standoff. However, we have some added issues due to the timing of this vacancy as discussed in the column below.
The passing of Supreme Court Justice Antonin Scalia has ignited the usual pundit guessing-game about possible successors, but this time with an unusual twist. It is exceptionally rare for a justice to die in the midst of a congressional session, let alone in the final year of a lame duck presidency. That means the first question for President Obama will be not which nominee has the best chance at winning confirmation, but whether he wants to try to win at all. If he is convinced that no nominee will be voted on before the new administration takes office in 2017, the course preferred by Senate Majority Leader Mitch McConnell, the White House may want to pick the best losing strategy. Viewed from these different perspectives, the list of candidates changes dramatically.
Here is the calculus. If you honestly think (as the White House has suggested) that the Republicans will eventually back down, you will want to put forward your top scoring nominees: candidates who are relatively young, moderate and free of controversial writings or statements. If you realistically think that the Republicans will hold firm and either filibuster or reject any nominee, you will want to put forward your best losing candidates, regardless of how liberal or provocative they may be.
GRAND SLAM LIST
Obviously, Republicans would love Obama to nominate a radioactive or hard left candidate. However, their dream of Kanye West or Gloria Steinem is not likely to pan out. Instead, the Administration could pick a respected moderate who has taken no positions on hot button issues. Here are a few of the most promising:
Sri Srinivasan: A moderate on the D.C. Circuit, Srinivasan is only 48 and was confirmed unanimously in 2013. Ted Cruz is not just a longtime friend but Republican Sen. Orrin Hatch called him “terrific.” Srinivasan was born in India and would be the first-ever South Asian circuit court judge and Hindu on the Court. While some liberal groups would not be thrilled with the former Exxon lawyer, Srinivasan would present one of smallest targets for the conservatives.
Jacqueline Nguyen: Nguyen, 50, has an incredible life story after coming from Vietnam at age 10 amid the fall of South Vietnam. Her opinions are a mix politically, but she drew criticism from liberals for a dissent favoring a police officer in an abuse case. She was confirmed to the Ninth Circuit Court of Appeals in San Francisco by a near unanimous 91-3 vote.
Merrick Garland: Garland, 63, is the Chief Judge of the D.C. Circuit Court of Appeals and a true moderate. Ironically, his age could work to his advantage with conservatives who may feel that his age limits their exposure if he turns out to be more liberal once on the court. He clerked for Supreme Court Justice William Brennan and counters views that Obama is making his selections based largely on diversity criteria.
SACRIFICE FLY LIST
While the “best losing candidate” may seem like an oxymoron (and you may believe that only a moron would agree to do it), there are candidates who are ideal for a losing scenario. This more pragmatic view is to try for a sacrifice fly that moves the election even if you do not move the nomination. Republican voters will already rally to try to avoid a liberal nominee who could threaten gun or abortion rights or other big ticket causes in the election. A compelling nominee could rally irate Democratic voters in the aftermath of a bruising confirmation fight.
Of course, agreeing to be a sacrificial nominee to the courts is a lot like signing up with the Navy to be a target buoy — it does not exactly make for a promising career. A nominee could wind up damaged goods or even “Borked” (the verb created after the Democratic trashing of nominee Robert Bork near the end of the Reagan administration). So you need not just a compelling nominee but a willing nominee.
Here are the best options:
Loretta Lynch: Lynch, 56, is the current U.S. Attorney General, and would be perfect for a sacrifice fly nomination. Republicans would be faced with roughing up a prominent female candidate with a compelling life story. She has no judicial experience, which means no opinions to pick apart. As a prosecutor, she has a tough-on-crime record. She is also very good in combative hearings and is guaranteed to still have a job when they are over. Lynch is not as good as a successful nominee since she is a bit older and also would have to recuse herself from a number of key cases. However, if you are looking at marginalizing the GOP with women and African-Americans, a Lynch nomination could be just the ticket.
Mariano-Florentino Cuéllar: Cuéllar, 43, is a liberal justice on the Supreme Court of California who served in both the Clinton and Obama administrations. Born in Mexico, he could rally the all-important Hispanic vote and force the GOP to bar the first Mexican-American on the court. As an immigrant, he would resonate well with a key political group.
Paul Watford: While the African-American vote is considered a lock for the Democrats, there remains the question of motivating this bloc to come out in the general election. A bruising confirmation fight for Watford, 48, might do it. A judge on the Ninth Circuit Court of Appeals, he was confirmed 61-34. Opponents deemed his positions on the death penalty and immigration policies too liberal.
Of course, Obama could make a choice entirely on the merits — or the GOP could commit the political version of an infield error and a sacrifice fly could actually score. Babe Ruth said, Never allow the fear of striking out keep you from playing the game. The question is what game are we playing.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors.
February 18, 2016