Hillary Clinton's Supreme Court Shortlist: 11 SCOTUS Possibilities

Not an official list, but still an impressive collection of contenders.

'I'm picking YOU for the Supreme Court!'

‘I’m picking YOU for the Supreme Court!’

There’s no denying it: the future of the U.S. Supreme Court is one of the most important issues in Election 2016. And this isn’t just from the perspective of legal nerds like myself. As noted over at FiveThirtyEight by Oliver Roeder, who simulated 10,000 hypothetical future courts under a President Trump and a President Clinton, “If Donald Trump is elected president, the Supreme Court may, seat by vacated seat, move rightward toward its most conservative position in recent memory. If Hillary Clinton is elected, the court may quickly become the most liberal it’s been in at least 80 years.”

Back in May, then-presumptive (and now official) Republican presidential nominee Donald Trump released his Supreme Court shortlist to the public. It was a smart move on his part, given many conservatives’ discomfort with him as a candidate. The Trump list was well received; as Professor Jonathan Adler put it over at the Volokh Conspiracy, “The list largely consists of well-respected, right-leaning jurists who would generally be expected to embrace a judicial philosophy similar to the justice they would replace.”

The Democratic presidential nominee, Hillary Clinton, has not released a similar list. Nor does she really have to; while she has to restore party unity after a contentious primary (a focal point of the DNC), she doesn’t have as many powerful doubters in her party as Trump had (and continues to have) in his. So all we can do is make educated guesses about SCOTUS nominees under a (second) President Clinton.

Which is exactly what Lydia Wheeler has done over at The Hill (via Morning Docket). Based on her research and interviews with insiders, here are her 11 names:

  • Chief Judge Merrick Garland (D.C. Cir.)
  • Judge Sri Srinivasan (D.C. Cir.)
  • Judge Jane Kelly (8th Cir.)
  • Judge Paul Watford (9th Cir.)
  • Judge Jacqueline Nguyen (9th Cir.)
  • Justice Goodwin Liu (California Supreme Court)
  • Justice Mariano-Florentino Cuéllar (California Supreme Court)
  • Judge Lucy H. Koh (N.D. Cal.)
  • Judge Patricia Millett (D.C. Cir.)
  • Senator Amy Klobuchar (D-Minn.)
  • Senator Cory Booker (D.-N.J.)

Before we discuss specific names, let’s talk about who’s not on the list. Barack Obama, for starters (whose omission makes sense; he’s already said he’s not interested). But also Judge Ketanji Brown Jackson (D.D.C.), who was on Obama’s shortlist to fill Justice Scalia’s spot. (I could see Judge Jackson being elevated by President Clinton to the D.C. Circuit and getting nominated to SCOTUS from there; remember, she’s only 45. See also Justice Leondra Kruger of the California Supreme Court, who’s an even younger 40.)

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On to the names that are on the list. Let’s start with the big question: would President Hillary Clinton renominate Chief Judge Merrick Garland to the Court? (This assumes that he isn’t confirmed in the lame duck session, as discussed by Jason Steed.)

That’s tough to say because it depends in large part on another factor that’s up in the air right now: control of the Senate. If the Republicans lose the presidency but hold on to the Senate, there’s a very good chance that Clinton would renominate Garland. Facing the prospect of a far younger and more liberal nominee, Republicans would jump at the chance to confirm a 64-year-old (his birthday is November 13), moderate white male to SCOTUS. Yes, he’s a bit older than some other recent SCOTUS nominees — but the Clintons reward loyalty (recall that Garland worked in the Clinton Justice Department), and they’re not afraid to nominate slightly older justices. Justice Ginsburg was 60 when nominated to SCOTUS and Justice Breyer was 56, both over the age of 55 that’s considered conventional wisdom (which Republican presidents have followed in recent appointments).

If the Democrats take the Senate, Clinton might face some pressure from the left to put up a more left-leaning and/or younger and/or more diverse candidate. And she has certainly preserved her prerogative to do that, by declining to explicitly commit to renominating Garland. But I share the views of my friend Jeff Hauser, a close watcher of Democratic politics:

Furthermore, President Clinton could placate disappointed lefties by signaling to them, publicly or privately, that her next nominee — and she surely will have another nominee, given the ages of the three oldest justices — will be more to their liking.

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After Chief Judge Garland — whom I’d give the best odds if I were preparing a SCOTUS nomination gambler’s guide — I’d put in the second tier the following judges: Sri Srinivasan, Jane Kelly, Paul Watford, and Patricia Millett. They are all, like Chief Judge Garland, highly respected federal appellate judges who were previously considered by President Obama for the nomination that ultimately went to Garland. All would — unlike the white male Garland — add gender or racial/ethnic diversity to the Court. And all would be confirmable, to varying degrees, by a Republican Senate.

(On that score, I’d give Judge Srinivasan — who worked in the Bush Justice Department, can call Senator Ted Cruz a friend, and won confirmation 97-0 — the edge. Judge Kelly also won unanimous confirmation, 96-0, but her work as a federal public defender lends itself more easily to Republican attacks than Srinivasan’s pre-robescent career at the DOJ and O’Melveny & Myers.)

In the next tier, I’d put Judge Jacqueline Nguyen, Justices Goodwin Liu and Tino Cuéllar, and Judge Lucy Koh. Why wouldn’t I put Judge Nguyen in the prior tier? I love Asian-American women on the Ninth Circuit — heck, I wrote a book (affiliate link) with one as a protagonist (note: in response to a question I sometimes get, no, Judge Stinson of Supreme Ambitions is not based on Judge Nguyen) — but for whatever reason, Nguyen doesn’t generate the same buzz as the Srinivasans and Watfords of the world among legal-geek circles. As for Justices Liu and Cuéllar and Judge Koh, I’m giving them a modest “non-federal appellate judge” discount, even though all of them have dazzling résumés, great reputations, and diversity advantages on their side.

In the final, long-shot tier, I’d put Senators Klobuchar and Booker (and you can apply the same analysis to Harvard law prof turned senator Elizabeth Warren). It’s fashionable to put political figures on SCOTUS shortlists and to wax nostalgic for the days when Governor Earl Warren and Senator Hugo Black could get appointed to the Court, but those days are gone. The Supreme Court today is, for better or worse, a much more “technical” institution than it used to be; even if it’s (arguably) just as political, the political outcomes must be dressed up in the proper doctrinal trappings. And sitting judges are much better qualified for that than politicians, especially politicians who haven’t practiced law in years.

More importantly, the Senate is critically important right now in American politics, and Senators Klobuchar, Booker, and Warren are popular and effective members of that body. Why take one of them out of the Senate — and create the problem of an open Senate seat to fill — when you have so many excellent lower-court judges to choose from instead?

So there you have it: some reflections on eleven possible Supreme Court nominees in a Hillary Clinton administration. Would it be more fun, and better political theater, for President Clinton to nominate a brilliant, flamingly liberal nominee to the Court, in the vein of Stanford law professor Pam Karlan or Judge Nina Pillard? Absolutely — but that’s not who Hillary Clinton is.

Notwithstanding the right-wing caricatures of her, Hillary Clinton is smart, sensible, and centrist. And there’s every indication that her Supreme Court nominee will be too.

Clinton’s court shortlist emerges [The Hill]
Clinton And Trump Are Both Promising An Extreme Supreme Court [FiveThirtyEight]
How Garland Gets Confirmed Before the Election [forma legalis]

Earlier: Making SCOTUS Great Again: Trump’s Supreme Court Shortlist


David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.