Why This Judge May Be One Of The Only Supreme Court Nominees Worth Considering

I am among the conservatives who will sorely miss Justice Antonin Scalia’s influence on the United States Supreme Court. I am among those who fear where the Court could go with a majority of staunchly liberal Justices.

I am among the conservatives who think that the Senate’s “advice and consent” power over the President’s judicial nominees permits Republicans to oppose President Obama’s picks for as long as they like.

However, I am also among the many Americans who have taken umbrage with Senate Majority Leader Mitch McConnell. On February 13, McConnell announced to the press in no uncertain terms that Antonin Scalia’s seat “should not be filled until we have a new president.”

By taking to the limelight only about an our after Justice Scalia’s death was confirmed, McConnell appeared tacky and graceless. By bluntly stating the nakedly partisan political strategy, he looked politically klutzy.

Bluntly stating to the world that, nope, you’re not even going to pretend to consider any nominee whatsoever is like telling a woman ten minutes into a date that you plan to ply her with drinks, get in her pants, then put her in a cab, and never call her again. This may essentially be your plan, and she may know it. But you don’t actually spell it out. It just isn’t done.

The small graces are the marks of civilized society, friends.

I am also among those who want to see the Supreme Court vacancy filled in a timely fashion. McConnell is not, after all, suggesting that we wait a few weeks or even a couple of months before moving forward. The new president won’t take office for nearly a year, even if November elections tell us in advance who the president will be. If the Senate’s confirmation process only begins in late January or early February, the Court is likely to not have a new Justice until near the end of the next SCOTUS term. In the meantime, there’s work to be done.

Two Sides To Every Stalemate

McConnell and his ilk have made clear their intentions. But how much does President Obama care about actually filling Scalia’s seat on the bench?

The President is entitled to nominate whomever he choses, of course. He can insist that he is acting within his constitutional role, and he’ll be right. Just like the Republicans. He can caterwaul about the other side’s partisanship, and he’ll be right. Just like the Republicans.

The process of staffing the Supreme Court would then reduce to political theater, song and dance numbers choreographed and staged solely for the applause of each side’s diehards. The President will do a little soft-shoe and nominate a liberal loyalist who the President is certain will not get confirmed. The Republican senators will take the stage, and McConnell will lead a chorus line in a number called “Elections Have Consequences.” Everyone goes through the motions, knowing that nothing will move forward.

If President Obama is truly interested in participating in the process of filling the vacancy, he will signal his good faith by nominating someone conspicuously centrist.

If Senate Republicans stonewall such a nominee, they will hand the president a political win, if not a practical one. He will appear to be acting in a spirit of compromise, while Senate Republicans will appear petulant and uncooperative.

I am NOT referring to someone who is simply a legitimately well-qualified leftward-leaning lawyer or judge. Sorry, Sri Srinavasan.

Rather, I am thinking of a potential justice who is so above partisan reproach that it would be, frankly, embarrassing for Mitch McConnell or anyone else to stand in the way of holding a confirmation hearing.

And Mitch McConnell does not embarrass easily.

A person of this sort, however rare and peculiar he or she may be, is the only person worth the president’s nomination, under present circumstances.

Deeply, Passionately, Extremely . . . Moderate?

Do such people exist?

Governor Brian Sandoval of Nevada looked like a possible nominee, until he withdrew himself from consideration. But there are others.

Consider Gregg Costa, who currently sits on the United States Court of Appeals for the Fifth Circuit.

Is he a prime age for a SCOTUS nominee?

Check.

Born in 1972, Costa is old enough to have developed a substantial record of academic and professional achievement, while still young enough to influence the Court for decades.

Has he faced the Senate confirmation process before?

Check.

Twice, in fact.

Costa took the Fifth Circuit bench in 2014, after being nominated by President Obama with the support of conservative Texas senators Ted Cruz and John Cornyn. Before that, in 2012, President Obama tapped Costa to serve as district judge on the United States District Court for the Southern District of Texas. Texas Republican Senators Cornyn and Kay Bailey Hutchison supported Costa’s nomination and confirmation.

Costa’s judicial confirmations are no mean feat. The Senators who endorsed him are stalwart conservatives, even among Republicans. Our Democratic President nominated him — not once, but twice.

Don’t take this cooperation for granted: several Fifth Circuit vacancies have lingered for a long time, presumably for lack of bipartisan consensus. Costa’s seat on the Fifth Circuit had been vacant for 837 days.

Moreover, the Texas Republican senators who have blue-slipped Costa are savvy in the law and unlikely to take positions in the federal judiciary lightly. John Cornyn is a former justice of the Texas Supreme Court, as well as the former Attorney General of Texas. Ted Cruz, before he became Donald Trump’s competitor, was Texas Solicitor General. Cruz also clerked for U.S. Supreme Court Chief Justice William Rehnquist.

Gregg Costa too clerked for Chief Justice Rehnquist, after clerking for Judge Raymond Randolph on the D.C. Circuit. Such résumé entries make Federalist Society members salivate.

But Costa was also the vice president of the Dartmouth College Democrats. He interned with the Democratic National Committee. He volunteered for the presidential campaigns of both Bill Clinton and Bob Kerrey.

Gregg Costa is a rare breed.

Prior to Greg Costa’s judicial service, he served from 2005 to 2012 as an Assistant United States Attorney in the Southern District of Texas. Notably, Costa was the lead prosecutor in the case against disgraced financier Allen Stanford.

While Costa’s only been on the bench a few years, he has more of a paper trail than, say, Justice Elena Kagan had when she joined the Court.

Viewed least favorably, Gregg Costa would no one’s first choice for Supreme Court Justice under other circumstances. God knows he is no philosophical replacement for Scalia. Who knows? Maybe Gregg Costa wouldn’t even be Gregg Costa’s first choice.

Viewed most favorably, though, Gregg Costa is someone who has done the remarkable — statistically improbable — job of rising through the ranks without alienating either liberals or conservatives. He’s a good man and a good judge who has earned the respect of both sides.

Could McConnell and his brethren shut down even a centrist nominee like Gregg Costa? Of course. But the president loses nothing by doing so, since his more liberal choice would also have been rejected. He would not actually be giving up a Supreme Court slot. And the President might gain something, however small, that he would not have if he nominated a liberal choice — viz., the appearance of good faith and a spirit of compromise.

If we’re going to have a nine-member Supreme Court any time in the next 14 months or so, good faith and compromise are exactly what we’ll need.

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Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit and ran the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at [email protected].