If Barack Obama doesn’t get his nominee for the Supreme Court confirmed, the choice likely goes to President Hillary Clinton or President Donald Trump.
What would that look like, and who might they choose?
Clinton, the presumptive Democratic nominee, has said she would nominate a candidate who favors abortion rights, voting rights, gay rights, same-sex marriage and overturning the Citizens United case that opened the door to more outside unregulated spending in elections. Clinton might chose someone off Obama’s list, though legal experts say the first female president would be likely to look for a woman.
I think you would see people who had more life experience, it wouldn’t surprise me if she ID’d someone who was an elected official. Ruth Bader Ginsberg has been a leader for years and years and is probably one of the last, I would say, kind of traditional civil rights/social justice people that are still remaining of the court. I would say there are people in that vein that she would want to nominate.
Michele Jawando, vice president for legal progress at the left-leaning Center for American Progress
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Trump, the Republican front-runner, has said he would nominate a conservative who opposes abortion rights and supports gun rights and allowing businesses who oppose birth control on religious grounds to not offer coverage to their employees. Some Republicans have questioned his conservative credentials, but Trump actually tossed out some possible names during a debate the day Justice Antonin Scalia’s death was announced.
Who knows? It’s an open question on whether Donald Trump has read the Constitution, and I’m not being facetious. This is a man who lacks even the most elementary understanding of the institutions of government. Earlier he talked about appointing his sister, much later he claimed that he was only joking. But with Donald Trump, the line between reality and humor is very thin indeed.
Jack Pitney, a former Republican Party official who teaches political science at Claremount McKenna College
Here are possible picks for both.
Pryor, 53, a former Alabama attorney general, was nominated by President George W. Bush in 2005 for a seat on the 11th Circuit U.S. Court of Appeals. He was confirmed by the Senate on a 53-45 vote but only after Democrats and Republicans worked out a deal.
During Senate Judiciary Committee hearings, Pryor called the Roe v. Wade decision that legalized abortion in the United States “the worst abomination in the history of constitutional law.”
On an Alabama death penalty case, Pryor said the “Issue should not be decided by nine octogenarian lawyers who happen to sit on the Supreme Court.”
Pryor has also run afoul of Christian conservatives during his career. As Alabama’s attorney general, he supported a decision to remove Alabama Court of Judiciary Chief Justice Roy Moore after he refused to follow a federal court order to remove a monument of the 10 Commandments from the front of the state’s judicial building.
Diane Sykes, 58, was nominated by President George W. Bush for a seat on the 7th Circuit Court of Appeals in 2003. She was confirmed by the Senate in 2004 on a 70-27 vote.
Like Pryor, Sykes has angered some evangelical and social conservatives when she wrote a majority opinion in a 2012 Federal Court of Appeals case that ruled Indiana couldn’t fully defund Planned Parenthood.
“The defunding law excludes Planned Parenthood from Medicaid for a reason unrelated to its fitness to provide medical services, violating its patients’ statutory right to obtain medical care from the qualified provider of choice,” Sykes wrote for the three-judge panel.
Sykes’ opinion may remind religious and socially conservative voters who want to strip Planned Parenthood of federal funding for providing abortion services of Trump’s belief that the organization has done “very good work for millions of women.”
But Trump has also said he would cut off Planned Parenthood’s federal dollars if it keeps providing abortions.
Kelly, 51, a judge on U.S. Court of Appeals for the Eighth Circuit, is friendly with Senate Judiciary Committee Chair Charles Grassley, R-Iowa. “She has a sterling reputation as a public defender and jurist. She would be on the short list of any Democrat,” said Jack Pitney, a former Republican Party official who teaches political science at Claremount McKenna College.
She clerked for an appellate judge and a U.S. district court judge, both Democratic and a Republican appointees.
She would be the first justice with a public defender’s background. The conservative Judicial Crisis Network recently began targeting Kelly for her work defending a client on child pornography charges convicted of murder.
Srinivasan, 49, a judge on the U.S. Court of Appeals for the District of Columbia, was reportedly on Obama’s short list. He once clerked for two Republican-appointed judges, is a longtime friend of Republican Sen. Ted Cruz dating to their days as law clerks and he represented in private practice, big business.
He was unanimously confirmed by the Senate. Srinivasan came to the United States when he was 4 from India so his father could teach mathematics at the University of Kansas.
If confirmed, he would be the first native of the Asian continent and the first Hindu to serve on the Supreme Court. The White House has been lobbied to pick as an Asian American.
Pamela Karlan, 57, a professor of law at Stanford Law School, served as the deputy assistant attorney general in the Justice Department’s Civil Division, where she is considered an expert on voting rights.
She served as co-counsel in the Supreme Court case that brought down the Defense of Marriage Act in 2013.
Karlan was reportedly on Obama’s shortlist in 2009. She would be the first openly bisexual justice.
Anne Marie Slaughter
Anne-Marie Slaughter, 57, an international lawyer who serves as president and CEO of New America and a former president of the American Society of International Law. She served as the director of policy planning for the State Department from 2009 until 2011 under Clinton.
Slaughter left the State Department after concluding "that juggling high-level government work with the needs of two teenage boys was not possible."
Koh, 61, as assistant secretary of state for democracy, human rights and labor in the during the Clinton administration and dean of Yale Law School.
His parents grew up in Korea under Japanese rule in an area that later became part of North Korea.
But experts say Koh, who is not particularly close to Clinton, came under fire for criticizing the George W. Bush administration’s treatment of terrorism suspects only to later defend similar practice, including the use of drone strikes, in the Obama administration.
Jackson, 45, serves as judge for U.S. District Court for the District of Columbia. Jackson would be the second African American on the court. But she is considered a longshot because she is not an appellate judge.
Lesley Clark and Mike Doyle contributed to this report.