The Shortlist of Four

A few quixotic election challenges notwithstanding, the 2020 Presidential election is over, and, barring anything unexpected, President-elect Joe Biden will be picking Supreme Court justices, likely in conjunction with a Republican controlled Senate.  Given the prospect of divided government, and our new President’s moderate instincts, a choice for the next Supreme Court nominee is likely to come down to a select group: a shortlist of four, to be precise.  It is my prediction that, if a Supreme Court vacancy opens during the 117th Congress, one of these four jurists will be selected.

Judge Ketanji Brown Jackson – U.S. District Court for the District of Columbia

President Biden has promised to appoint the first African American woman to the U.S. Supreme Court, and, Jackson, who currently serves as a trial court judge in Washington D.C. is bound to be high on the list.  The fact that Jackson ranks so highly on Supreme Court lists despite not being an appellate judge speaks to her experience and regard in progressive legal circles.

Jackson came to the bench with stellar legal credentials, with a B.A. and J.D. from Harvard University, and clerkships with First Circuit Judge Bruce Selya, and Supreme Court Justice Stephen Breyer.  Jackson then worked as a federal public defender and as an appellate litigator at Morrison & Foerster, filing a number of pro bono amicus briefs on criminal justice issues at the U.S. Supreme Court.

In 2009, President Obama nominated Jackson to serve on the U.S. Sentencing Commission, and she was unanimously confirmed by the Senate in 2010.  She was subsequently nominated and then unanimously confirmed again for the U.S. District Court for the District of Columbia in 2013.

In 2016, Jackson was one of five candidates closely considered by President Obama for appointment to replace Justice Antonin Scalia.  While she was not chosen, many assumed that she would be next in line for a seat on the D.C. Circuit if Judge Merrick Garland was confirmed to the Supreme Court.

While serving as a trial court judge, Jackson has made her mark with a series of bold decisions.  For example, in 2019, Jackson enjoined the Department of Homeland Security’s rule that expanded fast-track deportations without immigration hearings.  Similarly, in a suit seeking to compel testimony before the U.S. House from former White House Counsel Don McGahn, Jackson ruled that McGahn could be required to testify.  Jackson’s ruling was initially reversed by a 2-1 panel of the D.C. Circuit, but was ultimately affirmed by a 7-2 en banc decision of the full court.  This is not to say that Jackson has been a reflexive vote against the Trump Administration.  She sided with the Administration in holding that conservation groups couldn’t maintain a legal action against the building of a border wall on the basis of environmental impact.

As a whole, Jackson’s experience in indigent criminal defense and on sentencing issues, along with her experience with complex legal issues on the bench, would make her a compelling candidate for the Biden Administration, particularly in replacing Justice Breyer.

Justice Leondra Kruger: California Supreme Court.

The only shortlister who is not a federal judge, Justice Leondra Kruger is also, at 44, the youngest serious candidate for the Supreme Court.  Despite her age, Kruger is widely respected as an appellate litigator, has impressed on the California Supreme Court, and is a very real contender for a spot on the high court.

An L.A. native, Kruger received a B.A. magna cum laude from Harvard University and a J.D. from Yale Law School.  She then clerked for Judge David Tatel on the U.S. Court of Appeals for the D.C. Circuit and for Justice John Paul Stevens on the U.S. Supreme Court.  After a couple of years as an Associate at Wilmer Hale, Kruger joined the U.S. Solicitor General’s Office, spending six years there and arguing 12 cases before the U.S. Supreme Court.  She then moved to the Department of Justice Office of Legal Counsel in 2013.

In November 2014, California Governor Jerry Brown appointed Kruger to the California Supreme Court, replacing Justice Joyce Kennard, where she, along with fellow Brown nominees Goodwin Liu, Tino Cuellar, and Joshua Groban, have shaped a liberal revival on the Court.

This is not to say that Kruger has been predictable or outcome-driven.  Rather, she has been described as an incrementalist and swing vote.  She has voted with the court’s conservatives far more often than Liu or Cuellar and has generally proved moderate in her judging.  Nonetheless, Kruger has also been willing to speak boldly when the law requires it.  This year, she wrote for a unanimous court in reversing a death sentence for convicted murderer Scott Peterson, finding that the trial court violated Supreme Court precedent in its jury selection.  Similarly, in 2019, Kruger wrote for the Court in reversing the death sentence of a white supremacist based on prejudicial comments raised by the prosecutor.  Again, every justice concurred with Justice Kruger’s opinion.

As a whole, despite her youth, Kruger is unquestionably qualified for the Supreme Court, and could prove an intriguing choice for an Administration eager to make history by naming the first African American woman to the Supreme Court.

Judge Srikanth “Sri” 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.  While Srinivasan is not a Black woman, he may nonetheless be an appealing choice for confirmation in a Republican Senate, particularly if President Biden needs to replace a more conservative justice.

Born in India, Srinivasan moved with his family to Lawrence, Kansas, when he was four years old.  Srinivasan received a B.A., M.B.A., and J.D. from Stanford University and clerked for Judge J. Harvie Wilkinson on the U.S. Court of Appeals for the Fourth Circuit, and then for Justice Sandra Day O’Connor on the U.S. Supreme Court.

After his clerkships, Srinivasan practiced as an appellate litigator at O’Melveny & Myers, and also served in the Office of the Solicitor General for five years under President George W. Bush.  In 2011, Srinivasan was appointed to be Principal Deputy Solicitor General, ultimately arguing 25 cases before the U.S. Supreme Court over the course of his career.

In 2010, Srinivasan was vetted for a seat on the D.C. Circuit by President Obama, but Obama backed away due to liberal opposition and chose New York Solicitor General Caitlin Halligan for the vacancy (Halligan was ultimately filibustered for the Court by Republicans).  For his part, Srinivasan was nominated in 2012 to a different seat and confirmed in 2013 with unanimous support from the Senate.  During his confirmation, Srinivasan received rave reviews from prominent conservatives, who praised him as “highly respected.”

On the D.C. Circuit, Srinivasan has largely served as a center-left voice, pushing the once-conservative court to the left.  He has generally been more deferential to agency rulemaking, upholding labor regulations that guaranteed overtime and minimum wage to home health care workers. More recently, Srinivasan joined the majority of the en banc court in holding that former White House Counsel Don McGahn could be compelled to testify by the U.S. House, and joined the majority in dismissing Michael Flynn’s petition for mandamus seeking dismissal of charges against him.

In 2016, Srinivasan was one of three finalists for the Supreme Court nomination that ultimately went to Judge Merrick Garland.  Today, Srinivasan remains a worthy contender for the Court.  Additionally, like Kruger or Jackson, Srinivasan would also make history on the court, as  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

When Paul 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  to allow him to clear the then-60 vote cloture threshhold and be confirmed.  Today, the 53-year-old judge, who was nipped at the post for a Supreme Court nomination in 2016, would be strongly considered for a vacancy, particularly if Justice Clarence Thomas chooses to step down.

A California native, Watford received a B.A. from U.C. Berkley and a J.D. from U.C.L.A. School of Law before clerking for Judge Alex Kozinski on the Ninth Circuit and Justice Ruth Bader Ginsburg on the Supreme Court.  After his clerkships, Watford worked as a federal prosecutor in Los Angeles and then served as an L.A. Partner at Munger Tolles & Olson for ten years before President Obama tapped him for the federal bench.  At the time of his nomination, Watford won rave reviews from California Republicans, who described him as non-ideological and “very moderate.”  Nonetheless, Republicans quickly lined up to oppose Watford, complaining that Watford has assisted in a legal challenge to Arizona’s strict immigration law (the law was ultimately blocked by the U.S. Supreme Court).  Nonetheless, nine Republicans broke ranks and pushed Watford past a filibuster and onto the bench.  (Of the nine, three, Senators Collins, Graham, and Murkowski, will still be in the Senate in 2021).

In 2016, when Justice Antonin Scalia died, Watford was the third of President Obama’s shortlist for the appointment (with Judge Merrick Garland getting the appointment).

On the Ninth Circuit, Watford has forged a moderate path, serving as a swing vote on the closely divided court.  For example, in 2019, Watford sided with conservative judge Diarmund O’Scannlain in upholding the Trump Administration’s “Remain in Mexico” policy regarding asylum applicants (with Judge William Fletcher dissenting).  Similarly, in 2017, Watford broke in dissent from two Democratic appointees on the Ninth Circuit in affirming a district court order to the Government to provide a broad array of documents relating to the rescinding of DACA.  Watford’s position was ultimately upheld unanimously by the Supreme Court.

That’s not to say that Watford is conservative.  In 2018, he joined Judge Michelle Friedland’s opinion holding that a Catholic school teacher could bring an employment discrimination case against his employer without being bound under the “ministerial exception.”  Similarly, Watford authored a 7-4 en banc decision of the Ninth Circuit holding that the Fourth Amendment bars a Los Angeles regulation requiring hotels to retain guest records (the ruling was upheld 5-4 by the Supreme Court).

Given his stellar credentials, moderate reputation, and respect among the conservative legal community, Watford would be an intriguing choice for the Biden Administration.

Overall, if a Supreme Court vacancy opens over the next two years with a Republican Senate overseeing the confirmation, I expect Biden to choose one of these four jurists. Each are impeccably credentialed, experienced, and moderate enough to draw some Republican support.

2 Comments

  1. That appears to be a shortlist of two, since it seems highly unlikely Biden would break his unequivocal pledge to nominate a black woman for the next Supreme Court vacancy. Maybe Biden expands his list if his first choice is defeated in the Senate, but he can’t start out breaking one of the few firm promises he made during the campaign.

    Liked by 1 person

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