Joan Frawley Desmond, is the Register’s senior editor. She is an award-winning journalist widely published in Catholic, ecumenical and secular media. A graduate of the Pontifical John Paul II Institute for Studies of Marriage and Family, she lives with her family in California..
Would President Obama actually nominate a “moderate” jurist to replace Justice Antonin Scalia, who died unexpectedly last month?
Activists on both sides of the partisan divide may question that possibility, but when the White House released a shortlist of nominees, media outlets from Fox News to the Washington Post described them as “moderates.” Yet, as the Post notes, the nominees have almost no record of ruling on hot-button issues, so its tough to know for sure how they will vote, if confirmed.
“The White House is considering nearly half a dozen relatively new federal judges for President Obama’s nomination to the Supreme Court, focusing on jurists with scant discernible ideology and limited judicial records as part of a strategy to surmount fierce Republican opposition,” reported a March 7 story in the Washington Post.
The Post story acknowledged that the White House might be tempted to nominate a liberal jurist with a strong progressive legacy that would galvanize the Democratic base in an election year. However, the present strategy reflects the president's belief that he can apply more “pressure on resistant Republican senators by choosing a highly qualified federal judge regarded as moderate and non-ideological.”
But conservative legal activist Carrie Severino, chief counsel for the Judicial Crisis Network, isn't buying that argument, and her organization has already launched an investigation of the jurists on the short list.
Meanwhile, Tom Goldstein, in a post on SCOTUSblog, examined the broader political context that will help to shape Obama's choice, and speculated that a black jurist, possibly 9th Circuit Judge Paul Watford, will be the most likely choice.
“The administration can pick a nominee that fulfills both its jurisprudential and political goals, without giving Republicans a tool with which to fight back to persuade undecided voters. Dozens of nominees fit the ideological bill of being solidly progressive and changing the Court’s ideological balance if confirmed," said Goldstein.
Here is the White House's short list, which could be modified in coming weeks: I visited a number of media websites with different political leanings, and concluded that Carrie Severino and her investigative team have a big job ahead.
Judge Sri Srinivasan, 49. Appointed in 2013 to the U.S. Court of Appeals for the District of Columbia Circuit, he is the son of Indian immigrants, and a Hindu.
“He was unanimously confirmed by the Senate to the D.C. circuit court in 2013, a fact that would make it somewhat awkward for those same Republicans — including presidential candidates Ted Cruz and Marco Rubio — to block his confirmation to the Supreme Court now,” reports Rolling Stone.
He has worked for both Republican and Democrat administrations, and Fox News describes him as "low-key, practical and non-ideological; he may not excite many progressives, or give conservatives much to dislike."
Yet Think Progress, a liberal media website, says Srinivasan’s record is “similar to other mainline Democratic appointees. ...He was one of three judges on a panel that refused to halt the Obama administration’s Clean Power Plan, its most aggressive effort to fight climate change.”
Judge Paul Watford was confirmed for the 9th Circuit Court of Appeals in 2012, and has also worked for both Republican and Democrat administrations.
"Watford was confirmed to his present post by a vote of 61-34,” noted Rolling Stone. “Nine Republicans voted in favor of his appointment; Sen. Chuck Grassley, the chair of the Judicial committee, was not among them, on the basis of Watford's views on immigration and the death penalty. (Watford worked with the ACLU and National Immigration Law Center to contest Arizona's infamous immigration bill, SB 1070.)”
Chief Judge Merrick Garland, 63, was appointed in 1997 to the U.S. Court of Appeals for the District of Columbia Circuit. National Public Radio's Nina Totenberg described Garland as a “moderate liberal.”
But though he is the most experienced jurist on the list, Totenberg said Garland "has few political pluses for the president, as he is neither female nor a member of any minority group. In addition, he has a 19-year judicial paper trail for opponents to flyspeck.”
A 2010 SCOTUSblog assessment of his record presented Garland as more centrist than liberal, and opposed to legislating from the bench. But he has ruled on my very few hot button issues, so there is no real record on this. He is more conservative on criminal justice issues. “Unlike many other judges, Judge Garland's position on criminal law issues is not reflective of a broader ideology. One might expect that a judge with such a record on criminal law questions would be generally quite conservative across the board. That does not appear to be true, however.”
Judge Patricia Ann Millett, 52, was appointed in 2013 to the DC Circuit. “Millet worked for the appellate staff of the DOJ's Civil Division before becoming assistant to the U.S. solicitor general — a role in which she argued some 25 cases before the Supreme Court. [In] more than a decade of experience in the U.S. Solicitor General's office, Millett argued 32 cases before the Supreme Court, the second-most ever for a female lawyer,” reported Rolling Stone.
Fox News said sources from “both ideological stripes call her fair-minded, no-nonsense and non-ideological.”
Judge Jane Louise Kelly of the 8th Circuit Court of Appeals, boasts a significant record as a public defender. “Grassley could have a harder time rejecting 52-year-old Kelly, a former federal public defender in Grassley's home state of Iowa,” noted Rolling Stone, echoing the judgment of political commentators in Washington. But NPR's Totenberg argues that Kelly's work as a public defender will have left a paper trail and thus make her a “potential political targets for Republicans.”
Federal District Judge Ketanji Brown Jackson, 45, the youngest in the group and a trial judge based in Washington, D.C., is considered a long shot by most court watchers. A one-time public defender, she has also served on the United States Sentencing Commission, and clerked for Supreme Court Justice Stephen Breyer. NPR's Totenberg tallied up her “political pluses... she has done well since becoming a judge, is related by marriage to House Speaker Paul Ryan and is African-American.”
Stay tuned for more fireworks as Obama ramps up his campaign to secure a hearing in the Senate for his nominee, and his conservative opponents dig for evidence that will nail his choice as an activist judge.
Here's my takeaway: When the justices address hot-button issues (same -sex marriage, Hobby Lobby), landmark rulings have been split 5-4 decisions along party lines, with Justice Kennedy the swing vote. In that context, the vote of a "moderate liberal" can have an outsized impact. Every vote counts on the U.S. Supreme Court.