Obama likely to look to appellate courts for Scalia’s replacement

A Supreme Court without Scalia

With a presidential election in full swing and President Obama considering his legacy, Justice Scalia's untimely death couldn't have come at a more dramatic time in politics. Will the president be able to get a nomination through the Senate? And i
Up Next
With a presidential election in full swing and President Obama considering his legacy, Justice Scalia's untimely death couldn't have come at a more dramatic time in politics. Will the president be able to get a nomination through the Senate? And i

Kansas-raised and Stanford-educated, federal appellate Judge Sri Srinivasan could next secure the possibly mixed blessing of being nominated to the Supreme Court by a lame-duck president facing a partisan Senate.

Srinivasan is not the only potential contender for a nomination that’s certain to spark an election-year fight but by no means guarantees confirmation. He is, though, among the apparent front-runners.

“I know very little about the politics of the nomination, but I know that Sri would be a truly outstanding nominee in all respects,” former Kansas-based federal appellate judge Deanell Reece Tacha said Sunday. “He is exceptionally well qualified; an outstanding jurist with a powerful intellect and deep respect for the law.”

Now dean of the Pepperdine University School of Law in California, Tacha has known Srinivasan since he was a basketball-playing high school student in Lawrence, Kansas. In an e-mail, she praised his fitness for the nation’s highest court.

“I hope,” she said, “he will be given serious consideration.”

But the calculations, always tricky when it comes to Supreme Court nominations, now include even more variables than usual as President Barack Obama confronts the giant election-year vacancy left by the death of Justice Antonin Scalia.

Srinivasan’s 97-0 confirmation to the appellate court included ‘yes’ votes from both Ted Cruz and Marco Rubio.

“Nino Scalia was a legal titan,” Justice Stephen Breyer acknowledged Sunday.

One conventional option for Obama would be to offer maximum accommodation to the Republican-controlled Senate. Srinivasan’s colleague on the U.S. Court of Appeals for the District of Columbia Circuit, Chief Judge Merrick Garland, for instance, is the kind of former federal prosecutor conservatives like. His name has been publicly mentioned in connection with past vacancies.

But with Senate Republican leaders insisting that the Supreme Court seat await the results of the November presidential election, and with some ambitious rank-and-file GOP senators having the potential to stage a high-profile filibuster, even a classic middle-of-the-road contender could fall.

President Obama called Supreme Court Justice Antonin Scalia "a larger-than-life” presence on the Supreme Court. The justice died Saturday of unknown causes on a ranch near Marfa, Tex. In his speech, the president vowed to nominate the late justice

This political posturing against any Obama nominee could, in turn, ratchet up the White House’s own political motivations. Selecting a female, ethnic minority or openly gay candidate, for instance, might rally certain constituencies in November against alleged Republican Senate intransigence.

Several potential candidates could fit the bill.

I don’t have an overarching, grand, unified judicial philosophy that I would bring with me to the bench. I approach it in some sense in the position of a litigator. . . . It’s a case-by-case approach.

Judge Sri Srinivasan, at his 2013 confirmation hearing.

Srinivasan, for one, was born in India and would be the first Indian-American nominee to the high court. Another one of his colleagues on the D.C.-based appellate court, 52-year-old Judge Patricia Ann Millett, has attracted court-watchers’ attention as well, as has former Massachusetts Gov. Deval Patrick, who is African-American.

Attorney General Loretta Lynch also might have some appeal; she would be the court’s first African-American female nominee.

Even simply putting a name into play could serve a political purpose, depending on the different identity boxes a particular individual might check, and the lead-up to the actual nomination will likely see many mentioned.

Obama does have a deep bench to choose from. Since taking office in January 2009, he has placed 55 judges on the various courts of appeal, a traditional route to the Supreme Court.

Scalia, for one, had served on the D.C.-based appellate court prior to his 1986 elevation to the Supreme Court, as did three of the other remaining Supreme Court justices.

Garland has served on the appellate court since 1997, a record that’s a double-edged sword for his Supreme Court prospects. While few can match his lengthy bench experience, it also underscores his age. At 63, he’s at least eight years older than the last four Supreme Court nominees were when selected.

Presidents customarily like to appoint Supreme Court justices who are young enough to shape the legal landscape for the foreseeable future. Obama’s last nominee, Justice Elena Kagan, had just turned 50 when nominated in 2010.

Illinois-based federal appellate Judge Diane Wood, for instance, was thought to be on a Supreme Court shortlist early in Obama’s first term. Now that she’s 65, though, her time may have passed.

Beyond tapping the traditional appellate courts, Obama could in theory seek to broaden the Supreme Court’s makeup by looking to the political arena. None of the current eight justices have direct experience in electoral politics.

Srinivasan, though, could be in the front ranks, a stature underscored by his 97-0 confirmation in 2013 by the Senate to his current position. Joining in the vote for Srinivasan were Republican senators Ted Cruz of Texas and Marco Rubio of Florida, both of whom are now running for the GOP presidential nomination.

“Mr. Srinivasan has broad support,” Republican Sen. Lamar Alexander of Tennessee acknowledged at the time.

Srinivasan earned undergraduate, law and business degrees from Stanford. Hinting at his potential bipartisan appeal, he clerked for a Republican appointee, former Supreme Court Justice Sandra Day O’Connor.

At 48, Srinivasan has the relative youth that presidents like. He’s also now served nearly three years on the D.C.-based appellate court, which is longer than the appellate apprenticeships of either Chief Justice John Roberts, Jr., or Justice Clarence Thomas.

“Sri possesses all of the abilities, experience, and commitment to service that have distinguished the finest jurists in our history,” Tacha said.

CORRECTION: An earlier version of this story gave an incorrect date for Elena Kagan’s appointment to the Supreme Court. It was in 2010.

Michael Doyle: 202-383-0006, @MichaelDoyle10

Related stories from Kansas City Star