Let’s begin with a short timeline. Justice Scalia passed away on February 13, 2016. On March 16, President Obama nominated Judge Merrick Garland to the Supreme Court. Then on May 18th, Donald Trump set forth a list of 11 individuals he viewed as potential Supreme Court nominees if he should win the presidency. On September 23rd, Trump put out a second list with ten potential nominees, raising his total to twenty-one.
With signs pointing towards Hillary Clinton’s likely victory as the next President, Trump’s list will likely remain just that – a list. Clinton has yet to put forward a list of her potential nominees. On the other hand, Clinton has discussed several criteria she would like to see in a Supreme Court Justice.
Clinton need not supply potential picks prior to the election, and as many speculate, she may not need to if she is elected either, especially if Congress confirms Garland during the lame-duck session. Of course, Clinton could stick with the Garland nomination and very well might. But is Garland the best possible choice for Clinton? There are many reasons to suspect so. There are also numerous reasons for Clinton to ponder other potential nominees if she is elected into office (among them Clinton’s perspective on the nominees’ likely policy preferences).
Based on a number of characteristics, this post looks at who Clinton might choose for a nominee. There are several criteria used to make this list. The first criterion that sets the sample population for potential nominees is prior experience. The potential nominees examined in this post are all federal court of appeals judges. This is not a requisite for a Supreme Court Justice. Several judges who have been mentioned as potential nominees are actually California Supreme Court Justices (Justices Goodwin Liu and Leondra Kruger) and there are others with different, although relevant professional experience (for example Judge Ketanji Jackson). Still the Court only has one current Justice, Elena Kagan, that wasn’t a federal court of appeals judge prior to nomination. Aside from prior court, the other initial limitations were that they were nominated to the Court of Appeals by a Democratic President, and that they are an active judge.
The First Cut:
This initial list left 131 possible candidates. An interesting wrinkle in this initial list is that it includes Donald Trump’s sister, Maryanne Trump Barry. Although Barry was nominated by President Reagan to her seat on the New Jersey District Court, President Bill Clinton nominated her to the Third Circuit Court of Appeals. Barry did not make it past the next round of cuts though and even if she did it would be nearly impossible to think of a circumstance under which Hillary Clinton would nominate Donald Trump’s sister to the Supreme Court.
The Second Cut:
This pool of 131 was then further whittled down by three more narrowing criteria. Since one of the main criticisms of the Garland nomination is his age and there is a strong incentive for Presidents to choose younger nominees (Chief Justice Roberts was confirmed to the Court at 50), all judges on the list aside from Garland are under 60 years of age. The other criteria were that they had an initial ABA Qualifications rating of “Well Qualified” (Justice Thomas is the only current Justice with a rating less than “Well Qualified” with a “Qualified” rating) and the judge must have gone to a top-five ranked law school (all current Justices have law degrees from either Harvard or Yale) as this doesn’t appear to be a criteria that’s loosening (it is worth noting that there are strong candidates like Judge Paul Watford that do not make this cut).
Out of the 131 candidates from the first round of cuts, twelve remain (plus Garland). This list of potential nominees gives a lay of the land of the likely candidates. Aside from Garland are judges:
- David Barron of the First Circuit,
- Cheryl Krause of the Third Circuit,
- Pamela Harris of the Fourth Circuit,
- Stephen Higginson of the Fifth Circuit,
- John Owens of the Ninth Circuit,
- Michelle Friedland of the Ninth Circuit,
- Jill Pryor of the Eleventh Circuit,
- Robert Leon Wilkins of the DC Circuit,
- Sri Srinivasan of the DC Circuit,
- Nina Pillard of the DC Circuit,
- Patricia Millett of the DC Circuit, and
- Richard Taranto of the Federal Circuit,
These twelve judges are sorted according to additional plus-factors that may enhance their likelihood of a nomination. These factors are previously clerking for a Supreme Court Justice, previously working as a federal government attorney, work on the D.C. Circuit Court of Appeals, and adding demographic heterogeneity to the Court. Of this group, all were appointed directly to a federal court of appeals except for Judge Wilkins who began service as a judge in the United States District Court for DC Since no judge has ever been nominated to the Supreme Court from the Federal Circuit, Judge Taranto’s name can reasonably be removed from the list.
In terms of narrowing criteria, the first two are self-explanatory. The DC Circuit has been the most frequent Supreme Court feeder court in recent years with Justices Roberts, Thomas, and Ginsburg (and Scalia) working there prior to their nominations to the Supreme Court. The demographic diversity factor is due to an increased focus on diversity on the Supreme Court, especially in recent nominations (this is the first Supreme Court with three female Justices, the first with a Justice with a Hispanic background, and the second with an African American Justice). There has also been much normative discussion recently surrounding the importance of moving away from the white-male norm of Supreme Court Justices and this is a factor that Clinton has acknowledged as important. Only one of the twelve remaining judges manages to fulfill all of the additional criteria.
The figure below shows the narrowing process from a full set of potential judges that Clinton could choose to nominate to the top few described above.
* Although Judge Garland does not meet the above criteria (due to his age) he would likely fit into these categorizations as well due to his currently active nomination even though this would be at Clinton’s discretion.
The Top Choices:
Judge Srinivasan is the only judge to meet all four of these criteria. Srinivasan sits on the D.C. Circuit, previously worked in the Office of the Solicitor General, was born in Chandigarh, India, and clerked for Justice O’Connor on the Supreme Court. Srinivasan went to Stanford where he earned a JD and an MBA, He was ranked “highly qualified” by the ABA, and is currently 49 years of age. President Obama nominated him to the DC Circuit.
Garland, although over the threshold age of 60, otherwise meets three of the four final criteria as he sits on the DC Circuit, clerked for Justice Brennan at the Supreme Court, and was a federal prosecutor in the US Department of Justice.
The four other potential nominees that meet three of the criteria are all female – Judges Krause, Millett, Pillard, and Harris. Judge Krause clerked for Justice Kennedy on the Supreme Court and is a former US Attorney (she does not sit on the DC Circuit). Judge Millett works on the DC Circuit and worked in the Office of the Solicitor General (she did not clerk for a Supreme Court Justice). Judge Pillard also works on the DC Circuit and worked in the Office of the Solicitor General (she also did not have a Supreme Court clerkship). Finally, Judge Harris clerked for Justice Stevens on the Supreme Court, and served as an attorney in the Department of Justice (she, like Judge Krause does not sit on the DC Circuit).
Comparing Judicial Histories:
Of these judges only Pillard wrote an opinion in a case dealing with abortion, marriage equality, or campaign finance – three issues that Clinton has spoken about during her campaign. Judge Pillard wrote the majority opinion in the DC Circuit case Priests for Life v. HHS. The ruling was supportive of the healthcare mandate and so shouldn’t be an impediment to the possibility of Pillard’s nomination.
I discussed Garland’s judicial history in a previous post and have links to all of his majority opinions from the DC Circuit in a separate database. Srinivasan has written 54 opinions on the DC Court of Appeals. Twelve of these cases led to cert petitions and one petition was granted by the Supreme Court in Bruce v. Samuels (Srinivasan’s decision was affirmed). Judge Krause has written 83 majority opinions for the Third Circuit. Of these, seven have led to Supreme Court cert petitions. Five of these have been denied and two are still active. Judge Millett has 34 opinions on the DC Circuit, six of which led to cert petitions. Five of these were denied and one is still active. Judge Pillard wrote 44 opinions on the DC Circuit. Eight led to cert petitions. Of these two led to subsequent cert grants (Priests for Life and Menominee Indian Tribe of Wis. v. United States), and two are still active. Lastly, Judge Harris wrote 33 opinions on the Fourth Circuit. Only one led to a cert petition which was denied by the Supreme Court.
Based on the formal criteria used in this post, Judge Srinivasan is the only judge to fulfill each factor. Recall, Judge Srinivasan was also one of the last two judges in the running for the Supreme Court nomination when Obama originally named Judge Garland as his nominee to replace Justice Scalia. Aside from Srinivasan, there are good reasons for Clinton to maintain the Garland nomination as well (including Garland’s success with the criteria used in this post). This does not leave us far from where President Obama began the initial nomination process. There are an additional eleven judges in this post that meet many of the criteria and an additional four of which meet almost all of the criteria mentioned above and who may garner Clinton’s review if she needs to nominate the next Supreme Court Justice.
On Twitter @AdamSFeldman
Data collected with the help of @SamuelPMorse
Data on federal judges from the Federal Judicial Center