It’s been a busy week for SCOTUS-nerds. Last Monday, the Supreme Court kicked off for another blockbuster session, and last Tuesday, the liberal judicial group Demand Justice kicked off the latest bout of SCOTUS fever with its list of 32 prospective nominees under a Democratic president. The Demand Justice list has received some criticism for not being “realistic,” presumably by which the critics argue that the names of the list are likely to be overlooked for more mainstream candidates. While I’ve discussed that argument elsewhere, it is worth wondering: what would a “realistic” Democratic shortlist look like?
If a Democratic presidential candidate is foolish enough to task me with compiling their Supreme Court shortlist, here are the names I would suggest.
Chief Justice Cheri Beasley – North Carolina Supreme Court
Chief Justice Beasley made history earlier this year when she became the first African American woman to be Chief Justice of the North Carolina Supreme Court. While she has never served on the federal bench, the 53-year-old Beasley has twenty years of judicial experience, as well as experience in indigent defense, which is lacking in all of the current Supreme Court justices.
Justice Richard Bernstein – Michigan Supreme Court
With diversity key on the minds of many Supreme Court watchers, Justice Richard Bernstein would be the first Supreme Court nominee who has been diagnosed as legally blind. The 44-year-old Bernstein has demonstrated his intellect and his commitment for the rights of the disabled throughout his professional career and would add the perspective of a solo practitioner to the Supreme Court.
Judge Gregg Costa – U.S. Court of Appeals for the Fifth Circuit
The 47-year-old Costa currently serves on one of the most conservative courts in the country, where he has demonstrated a balanced and principled approach to the law. Costa, who clerked for the strongly conservative Chief Justice William Rehnquist, won the support of Sen. Ted Cruz in his appointment to the Fifth Circuit, demonstrating his evenhanded approach to the law.
Justice Mariano-Florentino Cuellar – California Supreme Court
While there are several extraordinarily qualified SCOTUS candidates on the California Supreme Court, my personal favorite is Justice Tino Cuellar. The 47-year-old Cuellar would be the first Hispanic male on the Supreme Court, and would bring extensive experience with administrative and constitutional law, providing a liberal intellectual counterweight to the originalists on the court. It doesn’t hurt that he is arguably the most liberal voice on the court.
Judge Michelle Friedland – U.S. Court of Appeals for the Ninth Circuit
The 47-year-old Friedland is the youngest Democratic appointee on the federal appellate bench and, as such, cannot be ignored. Friedland has stellar credentials for the Supreme Court, having clerked for Justice Sandra Day O’Connor and on the U.S. Court of Appeals for the D.C. Circuit. Despite the Ninth Circuit’s reputation as a conservative bugbear, Friedland is hardly the second coming of William Douglas. Rather, she has developed a moderate-liberal brand of jurisprudence on the Ninth Circuit, going where the law takes her and frequently getting the votes of more conservative judges.
Justice Melissa Hart – Colorado Supreme Court
The 49-year-old Hart has the least amount of judicial experience of any candidate on this list. Yet, her stellar credentials (clerked for Judge Guido Calabresi and Justice John Paul Stevens) make her impossible to ignore. Before she was appointed to the Colorado Supreme Court in 2017, Hart was a longtime legal academic, chairing the Byron White Center for the Study of American Constitutional Law at the University of Colorado Law School. As such, many compare Hart to Justice Elena Kagan (also a longtime academic before she joined the bench), and the similarities may bear out on the bench.
Judge Jane Kelly – U.S. Court of Appeals for the Eighth Circuit
Judge Kelly is my personal favorite for the Supreme Court. The Iowan graduated from Harvard Law School alongside President Obama in 1991. However, rather than taking a traditional law firm position, Kelly chose to be a public defender, spending her entire career defending the rights of indigent defendants. She continued this work even as she became a victim of crime herself, being attacked and left barely conscious while jogging. Kelly would provide a refreshingly different perspective on the Supreme Court, particularly on criminal justice issues.
Judge Patricia Millett – U.S. Court of Appeals for the D.C. Circuit
It is my personal (and completely uninformed) belief that, had Hillary Clinton won the 2016 election, Millett would have been her choice to replace Justice Scalia on the Supreme Court. The 56-year-old Millett is the oldest candidate on this list but still wins out due to quite possibly being the most qualified candidate in the country. Not only is Millett on the second most important court in the country, but, at the time of her confirmation, she had argued more cases before the Supreme Court than any other female advocate. Needless to say, there will be no learning curve for a Justice Millett.
Justice Raheem Mullins – Connecticut Supreme Court
The 41-year-old Mullins is the youngest candidate on this list. Despite his youth, however, Mullins does not lack judicial experience, having already been on the bench for seven years. Before he joined the bench, Mullins served as a prosecutor, but has proved to be a strong voice on the Connecticut Supreme Court, willing to go where the law takes him. For example, Mullins wrote for the Court in ordering the release of police records regarding Adam Lanza, the shooter in the Sandy Hook shooting of 2012. As a young, African American jurist, Mullins provides an intriguing possibility if Justice Clarence Thomas vacated his seat.
Justice Adrienne Nelson – Oregon Supreme Court
Justice Nelson has been breaking barriers throughout her life, including in high school, where she and her mother successfully sued to be named valedictorian of her graduating class, instead of a white student with a lower GPA. Last year, the 52-year-old Nelson became the first African American on the Oregon Supreme Court. If confirmed to the Supreme Court, Nelson would bring extensive experience working in indigent defense and in low income communities. Furthermore, for those who may question her credentials, Nelson has been on the bench longer than both Justices Gorsuch and Kavanaugh.
Judge Robin Rosenbaum – U.S. Court of Appeals for the Eleventh Circuit
The 53-year-old Rosenbaum has developed a reputation as the conscience of the Eleventh Circuit. A member of that court’s liberal wing, who frequently find themselves in dissent, Rosenbaum has won plaudits for her respectful and reasonable opinions. While Justice Sonia Sotomayor became the first judge in decades to have experience as a trial court judge, a Justice Rosenbaum would beat her out by one step. This is because Rosenbaum has served as a U.S. Magistrate Judge, a U.S. District Judge, and a U.S. Circuit Judge. It is a testament to Rosenbaum’s stellar reputation in Florida that she has won near unanimous approval at each of those steps.
Judge Srikanth Srinivasan – U.S. Court of Appeals for the D.C. Circuit
There may not be a better testament to Judge Srinivasan’s reputation than the fact that he won unanimous approval to one of the most important courts in the country at a time when judicial battles were at their most heated. During his confirmation to the D.C. Circuit, Srinivasan won plaudits from both sides of the aisle for his distinguished career (including a clerkship with Justice Sandra Day O’Connor) and his apolitical background. On the D.C. Circuit, Srinivasan has served as a liberal counterweight, moderating the conservative trend of the court. Additionally, if confirmed, Srinivasan would be the first Asian American, Indian American, and Hindu American on the Supreme Court.
Judge Paul Watford – U.S. Court of Appeals for the Ninth Circuit
The 52-year-old Watford is probably the most likely judge to see a promotion to the U.S. Supreme Court, with stellar credentials and a razor-sharp intellect. When Watford was first nominated for the Ninth Circuit in 2011, Republicans recognized the telegenic young attorney as a future SCOTUS-shortlister and lined up to oppose him, despite not really having a basis for doing so. Luckily for Watford, enough Republicans broke from the pack and supported him to allow him to clear the then-60 vote cloture threshhold and be confirmed.
While the former federal prosecutor, law firm partner, and SCOTUS clerk (Ginsburg) wouldn’t exactly be forging a new career path to the Supreme Court, it’s hard to deny Watford’s commitment to the law and his influence as a jurist.
In compiling any finite list, it is inevitable that qualified candidates are left out, and the exclusion of such names such as Justice Leondra Krueger, Judge David Barron, and Judge Adalberto Jordan is not a statement about their fitness. Rather, the overall goal of any such list is, ultimately, marketability, which means that you have to create a broadly acceptable group. Ultimately, each of these candidates has the ability and the experience to hit the ground running if confirmed to the Supreme Court. And the nation would be well-served with each of them.
I don’t know how Jane Kelly could be your top choice. The gap in talent between her and Millett, Srinivasan, Watford, or Costa (or Pillard or Higginson or Cheryl Krause, not mentioned here), is nearly as great as that between Sotomayor and Kagan, or Kennedy and Scalia. The only difference between Kelly and Karen Nelson Moore, or Judith Rogers, or Marjorie Rendell, or Stephanie Seymour, or Margaret McKeown, or Susan Graber, or Helene White, is she’s younger; she’s probably not even as good as someone like Graber or Moore. We already have far too many mediocrities/cum laude grads on the Court, between Sotomayor, Kavanaugh, and Gorsuch, and to pick someone much less gifted than the alternatives just for some experiential diversity that they could bring to bear in criminal cases would be a huge mistake.
I would strongly disagree that Judge Kelly is mediocre, same for the other names you suggest. She doesn’t merely stand out for her public defense experience, but rather for what that experience brings with it, actual real experience working closely with litigants and the inner workings of the criminal justice system. As Justice Sotomayor has shown, there is ultimately no substitute for experience, and I would rather have a Justice who spent their time actually working hands on with the law than one who spent much of their career “trading binders for bigger binders” as one law partner aptly put it.
Excellent list and overview of each candidate, all of which would be excellent choices. I must admit I was surprised to not see Justice Krueger on the list of 13, as she is my pick to replace Justice Ginsburg should she retire in 2021. Nonetheless, I would be happy to see any of these nominees on SCOTUS.
Thanks for your comment, Mike. I’m a big fan of Justice Krueger as well. Had I not limited myself to 13 candidates, she would definitely have been on. However, I didn’t want too many California nominees and she has the luxury of youth and waiting for a later vacancy.
“as she is my pick to replace Justice Ginsburg should she retire in 2021.”
What makes you think a republican president would nominate her or that a republican controlled senate would even bother holding hearings for her?
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