For most presidents, choosing a Supreme Court nominee is a puzzle. For President Barack Obama, the chance to pick a successor to Justice Antonin Scalia is more like a Gordian Knot.
As the White House carries out a rare election-year search for a nominee, the president’s lawyers and top advisers are sorting through a tangled web of political, legal and personal factors.
A smart pick and nomination strategy could determine whether Obama gets to reshape the highest court for the next generation. The wrong pick could cede that opportunity to his successor.
Democrats view this as a moment decades in the making. Recent Republican presidents have gotten more chances to fill seats, tilting the court in to the right.
“The Supreme Court has not reflected where the American people have been on issues,” said Gregory Craig, who served as White House counsel early in Obama’s first term. “This is the first opportunity in many, many years to bring the court more in line with the American people.”
For Obama, the clock is ticking. The sooner he picks a name, the longer he has to try to force the Republican-led Senate to hold a vote.
At the heart of Obama’s dilemma is how to manage the fierce Republican opposition to his decision to name a nominee. Within hours of Scalia’s death on Saturday, Republicans began arguing Obama should let his successor fill the open seat.
Obama brushed that argument aside, but it is undoubtedly weighing on his decision. Given the election-year timing, Obama would likely have been inclined to name the nominee most likely to appeal to Republican senators.
But if Republicans object to Obama even trying to fill the post — and remain united in that position —the president may see little point in bending too far to appease the other party. He may feel the pull to focus more on ginning up his own party’s base. Then key question becomes: What are the chances of getting a vote?
This wouldn’t be “the first time Republicans have come out with a lot of bluster only to have reality sink in,” White House spokesman Eric Schultz said Monday.
Refusing to allow a vote has consequences for the court, Shultz said, pointing to the prospects for tie votes that would allow lower court decisions to stand.
Schultz said the president will use the same criteria he used when he nominated Sonia Sotomayor, who became the first Hispanic on the court, and Elena Kagan, then-solicitor general.
In those instances, and in his appointments to lower courts, Obama has shown a desire to expand ethnic and racial diversity and to elevate more women.
His nominee would almost certainly support abortion rights, consideration of race in college admissions and other areas of public life, limits on campaign contributions and stronger rights of labor unions — all issues that have divided the court’s liberal and conservative justices on a 5-4 margin.
In all likelihood, those cases where the conservatives prevailed, with Scalia in the majority, would come out the other way if Obama gets to pick Scalia’s successor.
Obama also has prioritized young candidates — people likely to hold the seat for decades. He’s aimed for relatively uncontroversial personalities, people with views that fall into the category of mainstream liberal jurisprudence.
Obama will also be mindful of the clock. He has said there is “plenty of time” for Republicans to consider his choice. The more time he gives them before them — particularly before the height of campaign season — the stronger his argument. The time crunch may lean in favor of candidates who’ve already been vetted for administration jobs or recent court appointments.
It’s standard practice to keep files on possible nominees and assign a staff member in the White House Counsel’s office to manage and update the list. That list has long included Merrick Garland, chief judge for the D.C. circuit. He has a reputation as a moderate, in part because he was an official in the Justice Department who led investigations of the Oklahoma City bomber and the Unabomber. If Obama is going to reach out to Republicans, Garland might be the tool.
But as a 63-year-old, white male Garland doesn’t check the diversity or youth boxes.
For a more historic choice, Judge Sri Srinivasan is considered a leading option.
Born in India and raised in Kansas, Srinivasan, 48, would be the first Indian-American on the court. He joined the appeals court in Washington in 2013, meaning he has been recently scrubbed. The Senate confirmed him by a 97-0 vote.
Srinivasan, however, may not fire up the interest groups Democrats might want to engage in the fight. He initially faced relatively muted opposition from liberal groups because of his work in private practice defending business interests against claims of human rights abuses in foreign countries.
Other judges under possible consideration are Paul Watford, a 48-year-old former federal prosecutor appointed by Obama to the federal appeals court based in San Francisco. Watford would be only the third African-American to serve on the Supreme Court.
Judge Patricia Millet, 52, like Srinivasan, worked in the Justice Department under both Democratic and Republican administrations. She also was nominated by Obama and confirmed to the appeals court in Washington in 2013.
It’s possible Obama may look beyond the bench for his candidate. Homeland Security chief Jeh Johnson has been floated. A sitting senator is an enticing option, if Obama wants to force Republicans to deny a colleague a hearing. New Jersey Sen. Cory Booker and Minnesota Sen. Amy Klobuchar have both been mentioned as possibilities.