Potential Replacements for Former Justice Antonin Scalia

Written by: Martin Sicilian, PO ’17

Former Justice Antonin Scalia’s death has sent the United States political scene into a frenzy, with public figures in each major party hurrying to posture in ways that they think will leave their party in a better position for the 2016 election as well as help it control the Court. Senate Republicans and Presidential hopefuls claim that Obama should not even nominate a Justice in his final year, instead leaving it for his successor.

Obama has vowed to “fulfill [his] Constitutional duties” and nominate Scalia’s replacement. But will that nominee be our next justice? This depends on whom the President nominates as well as many other factors, but it is a question for political game theorists. That said, whomever Obama nominates, if he/she is not confirmed, will automatically secure a position on Hillary Clinton’s shortlist if she were to win the presidency.  Let’s take a look at a few of the most likely picks.

The most prominent choice is Sri Srinivasan, who would be the first Indian-American to serve on the high court. Mr. Srinivasan is an accomplished Supreme Court lawyer who graduated from Stanford Law School before clerking for Judge Harvie Wilkinson III and then for Justice Sandra Day O’Connor of the Supreme Court, a Reagan appointee. He currently serves on the D.C. Circuit Court and previously served as Principal Deputy Solicitor General. He was the expected replacement for Ruth Bader Ginsburg had she retired during Obama’s second term.

Although he is young, Srinivasan is considered a moderate and was unanimously (97-0) confirmed by the Senate to the D.C. Circuit Court. This would make it particularly hard for Senate Republicans to deny him a vote or even to turn him down without making it crystal clear that they are keeping a Supreme Court seat vacant for political reasons. In contrast to more liberal judges, Srinivasan has emphasized the importance of stability in law. Still, Obama, who is looking to protect and expand his legacy, would be happy to see Srinivasan on the Supreme Court.

Our current Attorney General, Loretta Lynch, is another possible nominee. Lynch, who used to be a federal prosecutor, earned a degree in English and American Literature from Harvard and a JD Degree from Harvard Law School before beginning a long career that took her through both the private and public sector. She served on the board of the Federal Reserve Bank of New York for two years. Attorney General Lynch is the first African-American woman to hold her position.

While clearly a more partisan choice than Mr. Srinivasan, Lynch had meaningful bipartisan support just two years ago, having secured ten Republican votes for her confirmation as Attorney General, including the vote of Senate Majority Leader Mitch McConnell. Republicans tend to like former prosecutors (no offense, Christie), but Lynch’s high-profile position within the Obama administration will make her particularly unlikely to pass through the Republicans.

Judge Paul Watford, an African-American man of 48 years, is probably high up on President Obama’s shortlist. Judge Watford serves on the 9th Circuit Court of Appeals, a position for which he received a 61-34 confirmation vote from the Senate in 2012. Also considered as a potential replacement for Ruth Bader Ginsburg, for whom he clerked after he graduated from the UCLA School of Law. If he were to be elevated to the Supreme Court, he would be the only Justice not from either Harvard or Yale Law schools.

Judge Watford was confirmed 61-34 and has been identified by some conservative legal figures as both capable and moderate. However, he assisted in cases involving the death penalty and Arizona’s controversial immigration law SB1070, two aspects of his career that the Republican Senators will surely highlight in an attempt to paint Watford as a liberal activist, which would make him less appealing to moderates and, in turn, soften the blow to Republicans from failing to confirm Obama’s nominee.

We would be remiss not to include support for one of this journal’s favorite interviewees, Harvard Law professor Noah Feldman. Despite his young age of 45, he is an eminently qualified constitutional lawyer and would make a good addition to the Court.

 

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