Who Will Obama Nominate To Replace Scalia -- A Gambler's Guide

We place odds on the potential nominees for Antonin Scalia's Supreme Court seat.

Supreme Court prettyIn case you missed it, Justice Scalia has passed. And thus a new vacancy opens on the Supreme Court, and with it a cavalcade of speculation over who President Obama will nominate. Many legal experts are going to dryly provide their opinions and fresh takes on the President’s eventual choice, but we’re Above the Law, so we’re going to go a step further and help you gamble with your friends by placing odds on these folks.

Note that these odds cover only who will be nominated — and nominated first in case someone gets Borked — and not who will eventually get the job. While the Constitution contemplates that the President will fill the Supreme Court vacancy with the advice and consent of the Senate, a number of high-profile conservatives have decided that the Constitution is a “living breathing document” after all and written into it the notion that it doesn’t contemplate them fulfilling their duties to provide a fair hearing and an honest vote to a president barred by term limits. It’s gotten so silly that President Obama got tagged with the “lame duck” title even though the term explicitly doesn’t apply until after November 8th. And thus we now stand on the precipice of a rump Supreme Court for over a year when you consider the 11 remaining months of Obama’s term and the several months the next president will have to expend on the nomination process.

In any event, let’s get gambling.

(Photo by Darren McCollester/Getty Images)

(Photo by Darren McCollester/Getty Images)

Bill or Hillary Clinton: 7500-1

Democrats love to touch themselves to the idea of Bill Clinton getting all Tafty up in this branch. But if there was ever any chance of that happening, it died when he became a 69-year-old vegan ringwraith. Have you seen that guy on Hillary’s campaign trail? Antonin Scalia looks more lively. Too soon? Yes. It is.

Meanwhile, President Obama isn’t going to feel the Bern and remove his all-but-anointed successor from the race, but it would be an interesting experiment. Force the Republicans to pick their poison — Hillary the President or Hillary the lifetime appointment. Plus, let’s not forget that Hillary’s best moment of this campaign was slicing and dicing Trey Gowdy at the Benghazi hearings. Since Hillary seems entirely incapable of effectively campaigning, maybe Obama will stick her there for a few months so she can make her case for president in her preferred Senate testimonial milieu.

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640px-President_Barack_Obama-300x374Barack Obama: 5000-1

This train is already leaving CrazyTime Station. “He’ll appoint himself and leave Grandpa Joe in charge for a year!” If there’s one person the GOP Senate would hate more than the Clintons, it’s Barry O. Yes, he technically could appoint himself, but the idea is beyond pure applesauce. But it would give the Senate an opportunity to see if they really would have the votes to convict an impeached Obama.

Elizabeth Warren 2 Harvard Law School law professor SenatorElizabeth Warren: 200-1

Does President Obama want to throw a bone to the progressive wing of his party… before going all-in with Hillary? Because if Liz Warren were any more a symbol of “progressive” she’d be named “Flo.” But let’s get reasonable here. The whole reason she’s even in the Senate now is the Republican refusal to consider her for the comparatively meager post of head of the CFPB. That f**king backfired, didn’t it?

Justice Sandra Day O'Connor Justice O'ConnorSandra Day O’Connor: 150-1

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Hear me out on this one. The former justice has retired, but still actively hears cases in the lower courts, so her judicial chops are up to speed. And one of her primary motivations for retiring was to spend time with her ill husband, who has subsequently passed. Justice O’Connor would rejoin a lonely Justice Kennedy in the ideological center of the Court. She would not move the Court appreciably to the Left or Right. And to Republicans baying that the “next president” should get to decide the fate of this seat… well, Justice O’Connor is 85. It keeps the Court in business and does not shift the balance. This resolves all of the GOP’s arguments against an Obama pick.

Loretta Lynch (Photo by Mark Wilson/Getty Images)

(Photo by Mark Wilson/Getty Images)

Loretta Lynch: 50-1

Despite having an impeccable record, the Attorney General was confirmed by a mere 56–43 vote only last year. If the GOP had filibuster numbers less than 12 months ago, why the hell would they get on board with giving her a lifetime appointment?

Plus, does Obama want to go through another confirmation fight for Attorney General Preet Bharara? I think not.

Kamala_Harris_Official_Attorney_General_PhotoKamala Harris: 30-1

Long thought a lock for either the Court or Attorney General, the nation’s “best looking attorney general” — according to President Obama (and really who is her competition? Eric Schneiderman?) — now looks poised to go the electoral route. She’s probably going to be California’s next Senator, so there’s little enticing about subjecting herself to a drawn out and fruitless confirmation battle.

merrick garlandMerrick Garland: 30-1

These may seem long odds for a judge considered the most likely Democratic nominee. But Judge Garland is now 63, and if President Obama really hopes to put a leftward stamp on the Court before walking out the door, this probably isn’t the answer. That said, Yahoo! News reports that sources within the White House have Judge Garland on the “short list,” so he’s still a good value bet.

question-mark-girlThe Field: 23-1

There are other great candidates out there from the Seventh Circuit’s Judge Diane Wood to the Eighth Circuit’s Jane Kelly to the Ninth Circuit’s Sidney Thomas to California Supreme Court Justice Goodwin Liu and many, many more.

They just all, individually, have very little shot.

Jeh Johnson LFJeh Johnson: 20-1

Rachel Maddow has been touting Secretary Johnson as a possible pick. Our own David Lat sat down with him a few years ago while he was serving as the General Counsel of the Department of Defense. Almost no one questions his legal acumen, but Johnson has never served as a judge — remember how that was a minor kerfuffle for Justice Kagan — and he was confirmed as Secretary of Homeland Security by only a 78-16 vote. That’s obviously a healthy majority, but remember this is a department that Republicans absolutely adore. They can’t imagine a world where Homeland Security is left rudderless, and they still got 16 people to vote against him. Add in the midterm election shift and that 19-vote margin keeping him out of filibuster range seems too close to risk.

Neal Katyal Neal K KatyalNeal Katyal: 12-1

The Georgetown professor and former Acting Solicitor General has argued the second-most Supreme Court cases of any minority in history. Katyal is probably best known for winning Hamdan v. Rumsfeld on behalf of Guantanamo detainees, a case that Scalia considered entirely wrongly decided so it would be entertaining to see Katyal take his seat. But that sort of advocacy doesn’t earn you a lot of friends on the Republican side of the aisle. Along with Kamala Harris and (spoiler alert) Judge Srinivasan, Katyal makes three people of Indian descent with a decent shot at the Supreme Court.

Judge_Paul_J._WatfordPaul Watford: 8-1

Judge Paul Watford of the Ninth Circuit is Tom Goldstein’s pick. He makes a good case substantively. Judge Watford is a well-respected jurist and would add to Obama’s legacy of diversifying the Court by adding an African-American man. The problem with Goldstein’s argument ironically lies buried within one of his main points of support:

Watford was confirmed by the Senate in 2012 by a vote of sixty-one to thirty-four, which is a filibuster-proof majority. Nine Republicans voted in favor of his nomination.

It’s a filibuster-proof majority OF TWO. And do you know what’s happened since 2012? The 53 Democrats (including independents Lieberman and Sanders) became 46. The argument here is that a guy who barely would clear a filibuster in 2012 for a lower court seat will get by now that there are 7 fewer Democrats? This makes Goldstein’s pitch a lot of argle-bargle.

Donald Verrilli Don Verrilli Solicitor GeneralDon Verrilli: 5-1

For all the flack the Solicitor General got during that first Obamacare argument, Verrilli actually is liked and respected by key folks on both sides of the aisle. Verrilli is so bland (in the best possible way) that it’s almost unthinkable that anyone could cast him as the liberal ogre coming to destroy freedom. He looks more likely to sneak up on America and help us do our taxes. This could be a “safe” pick for Obama.

Sri_SrinavasanSri Srinivasan: 5-2

The 48-year-old would be the first Indian-American on the Court. He was appointed to the D.C. Circuit — the nation’s second most important court — by a vote of 97-0 in 2013. No amount of midterm rearranging can change that. Assuming Obama’s goal is to successfully put someone on the Court, setting up the narrative of “well, Mitch, you thought he was competent three years ago… what changed?” is pretty powerful. Plus, he has a solid midrange jumper and would totally dominate The Highest Court In The Land.

Place your bets, ladies and gentlemen. Who will be the poor sap sitting in front of an intransigent Senate for the next 11 months?

Ninth Circuit Judge Paul Watford is the most likely nominee to replace Antonin Scalia [SCOTUSblog]

Earlier: Justice Antonin Scalia Reported Dead Of Natural Causes In West Texas
Barack Obama: Yes, He Can — Nominate Himself to the Supreme Court?
An Afternoon With Jeh Johnson, General Counsel of the Defense Department