The Latest In The Supreme Court Nomination Carousel

UPDATE (7:35 p.m.): Shortly after this went up, sources say the shortlist got narrowed from five to three.

It’s been almost exactly a month since Justice Scalia passed away, and the approach of America’s elected officials to addressing this vacancy has been, for lack of a better term, pure applesauce. With news of Justice Scalia’s death only hours old, senior GOP Senate staff declared partisan obstruction without any justification before stumbling into their “the American people should have a voice” rationale, prompting Obama to say, “Scoreboard, 2012.” Everyone tried to play “you started it,” with Democrats quoting St. Reagan and Republicans cuing up a laughably out-of-context Joe Biden quote.

We took a short break to shift the phony outrage to President Obama’s decision not to attend Justice Scalia’s funeral, before getting back to the serious business of explaining why the longest vacancy in Supreme Court history could possibly be justified by anything other than cynicism. As Professor Edward Fallone highlighted in a conference call hosted by Alliance for Justice (focusing on a letter by 356 legal scholars calling for a vote), Alexander Hamilton made clear that the intent of the Constitution is to grant the Senate only a post-nomination role, but who cares about originalism these days anyway?^[1]

There was a potential Republican nominee — maybe this will melt some GOP intransigence! That lasted about a second. More trial balloons — leaked reports of White House vetting — followed, but the Court remains in limbo.

Judge Adalberto Jordan just dropped in to tell everyone he doesn’t want the job that no one was seriously considering him for anyway. Is Supreme Court consideration really an opt-out class, now? Attorney General Loretta Lynch also withdrew from consideration, on the off chance Obama had suffered a massive head wound and thought going through two contentious confirmations was better than just one. For that matter, I think Marshawn Lynch is out too.

But now, finally we have a real shortlist. Maybe. Who knows? Tom Goldstein handicapped the five potential nominees that most everyone believes are “Papabile,” if you will: D.C. District Judge Ketanji Brown Jackson, D.C. Circuit Judge Merrick Garland, Eighth Circuit Judge Jane Kelly, D.C. Circuit Judge Sri Srinivasan, and Ninth Circuit Judge Paul Watford. Goldstein evaluates each according to their objective qualifications, potential legacy, the politics, and their confirmability. It’s a considered examination worth checking out.

And it — more or less — lines up with our own ATL Gambler’s Guide to the nomination. Consider the odds you were getting on these five at the beginning of this process:

Judge Brown Jackson 23-1 (The Field)
Judge Garland 30-1
Judge Kelly 23-1 (The Field)
Judge Srinivasan 5-2
Judge Watford 8-1

So two of the potential final five were grouped in “The Field.” Not necessarily encouraging for a prognosticator, but since there’s nothing to be gained by backing off, I’ll double down on that decision. Judge Kelly was specifically called out as part of that group at the time because it struck me as though being in Senator Grassley’s good graces wasn’t really the boon the D.C. talking heads pretended it would be. Indeed, Professor Mark Kende noted that Senator Grassley has made public appearances in Iowa declaring his steadfast refusal to budge — in full awareness that Judge Kelly is in the mix. Meanwhile, Judge Brown Jackson came entirely out of left field — but will a district judge really make the leap? Goldstein still thinks so, but even he admits, “I’m reliably told by someone deeply involved in prior nominations that the president simply will not appoint a district judge.”

And the carousel continues to turn, but Judge Srinivasan still seems the best positioned to end up with that brass ring.

Which, in this case, is a humiliating and dismissive rejection by the Senate Judiciary Committee.

Handicapping the five potential nominees [SCOTUSBlog]

Earlier: Who Will Obama Nominate To Replace Scalia — A Gambler’s Guide
Obama Skipped The Scalia Funeral — Let’s All Overreact!
Ronald Reagan Thinks The SCOTUS Vacancy Should Be Filled Now
President Vetting Republican For SCOTUS — Obama Officially Overthinking This
Governor Sandoval Pulls Himself Out Of SCOTUS Consideration Because… Obviously

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[1] Frankly, Hamilton envisioned — probably in a rap — a Senate distinct in form from the House of Representatives and more isolated from the political whims of the populace so maybe his neat and tidy belief that the Senate would approach nominations in a sober, thoughtful manner fell by the wayside with the XVII Amendment. I asked Professor Fallone about this, and he felt the rise of mass media and the pressure to uphold some sort of ideological purity has more to do with how the system got this far removed from Hamilton’s vision, but one has to wonder how much those would weigh if a Senator had a buffer between himself or herself and the voter.

Not that indirect election of Senators is a good idea — it’s f**king stupid — but it’s worth placing Hamilton’s comments in their appropriate context.