Against tremendous opposition from Senate Republicans, Barack Obama has declared that he will too nominate someone to succeed the late Antonin Scalia on the Supreme Court.
We don't know for sure who's on the president's Supreme Court shortlist, and his lists from 2009 and 2010, when he picked Sonia Sotomayor and Elena Kagan, don't necessarily apply now. Those two were replacing liberal justices and faced a Democratic Senate. Today, Obama has to pick a nominee who's not just acceptable to a Republican Senate, but acceptable as a replacement for Scalia.
That's a tough task, and as hard as Obama's inclinations are to predict, forecasting the reactions of Senate Republicans is even harder. With that being said, here are seven names you'll likely hear in the days and weeks ahead as leading contenders to succeed Scalia, in most cases because they're especially likely to be confirmed. Be sure to also check out ThinkProgress's Ian Millhiser and the New Yorker's Jeffrey Toobin, who have very useful lists.
Jane Kelly — US Court of Appeals for the Eighth Circuit
Any nominee is going to have to go through the Judiciary Committee, chaired by Sen. Chuck Grassley (R-IA). And no nominee is going to make Grassley happier than Jane Kelly, a career public defender from Iowa whose nomination for the federal bench Grassley championed, leading to a unanimous confirmation in 2013. She was also, coincidentally, a Harvard Law School classmate of Barack Obama's, graduating with him in 1991.
Her record as a defense attorney might spark some objections from law-and-order-oriented conservatives in the Senate, but it's hard to argue she lacks empathy for victims of crime. In 2004, while jogging, she was tackled and beaten by a male stranger, requiring months of recovery before returning to her practice.
None of this guarantees she will be confirmed. But if Kelly is not confirmable, it's hard to imagine anyone is.
Sri Srinivasan — US Court of Appeals for the DC Circuit
Srinivasan is by far the most mentioned Supreme Court contender in DC, owing largely to his unanimous 2013 confirmation to the DC court. That's in many ways a more impressive feat than Kelly's unanimous approval: The DC court is by far the most prominent circuit court, owing to its jurisdiction over challenges to rules made by federal regulators like the Environmental Protection Agency. The fact that Srinivasan could get unanimously approved for that court is truly remarkable.
His background helps explain the across-the-board enthusiasm. He worked for the solicitor general's office for seven years: five under George W. Bush, two under Obama. He clerked for two Republican judges, Sandra Day O’Connor and the Fourth Circuit's J. Harvie Wilkinson III, and represented a number of corporate clients in private practice, including former Enron executive Jeffrey Skilling in his Supreme Court appeal, a newspaper that fired reporters for union activities, and Exxon when it was trying to escape liability for murder and torture its security forces committed in Indonesia.
If anything, many liberal activists might think Srinivasan too conservative to promote to the highest court. That might not be enough to get Senate Republicans on board, but it can't hurt.
Amy Klobuchar — US senator from Minnesota
If you want to win over senators, why not pick one of their peers? And there's no one on the Democratic side in the Senate better suited to the court than Minnesota's senior senator.
Before her election in 2006, she was the head prosecutor for Hennepin County, which includes Minneapolis, for eight years, and has a fan in former Obama regulatory czar Cass Sunstein, who was one of her professors at the University of Chicago Law School and praised her "wonderful performance as a student" in Senate testimony. She serves on the Judiciary Committee, meaning she's worked for years with the people who'd be weighing her nomination.
Back when Republican Tim Pawlenty was governor of Minnesota, nominating Klobuchar would've been a riskier proposition for Obama, seeing as he'd be able to appoint her replacement and would've almost certainly picked a Republican. But with Democrat Mark Dayton in the governor's office, it's fairly certain the seat will stay in Democratic hands even with her on the court.
Merrick Garland — US Court of Appeals for the DC Circuit
If the Senate were Democratic and a liberal justice were up for replacement, it's unlikely Garland would be in serious contention. He's a white man at a time when the Obama administration is aggressively trying to make the federal bench more diverse, he's 63 at a time when presidents are trying to pick justices in their 50s to maximize their tenures, and he's very pro-law enforcement at a time when the administration is looking to rein in the police.
But all of those are potentially factors that make him more palatable to a Republican Senate. His age means his tenure is limited; they're not approving a John Paul Stevens who'll serve for 35 years. His career as a prosecutor and his pro-police rulings reduce the odds that a liberal court will overturn existing precedent on criminal justice issues, which is significant given that Ruth Bader Ginsburg and Stephen Breyer have both suggested they want to strike down the death penalty entirely.
And you certainly can't knock him on experience. He's been on the DC Circuit for 19 years, and has served as its chief judge for three.
Paul Watford — US Court of Appeals for the Ninth Circuit
Watford is the youngest person on this list, at 48, and would be only the third African American appointed to the court. He also went to UCLA Law School, which might provide a valuable form of diversity at a time in which eight of nine justices went to Yale or Harvard (and Ginsburg graduated from Columbia after transferring from … Harvard). He clerked for the widely liked (albeit idiosyncratic) conservative judge Alex Kozinski, as well as Ginsburg. Conservative law scholar Eugene Volokh was an enthusiastic supporter of his appellate confirmation.
That being said, a Watford confirmation is probably a long shot because of Grassley's strong opposition, due to the judge's work on cases challenging Arizona's infamous 2010 immigration law and on an amicus brief critical of Kentucky's lethal injection protocol. Watford was only confirmed 61 to 34 in 2012, with a Democratic Senate, suggesting his confirmation for a higher court under a Republican Senate is highly unlikely.
Jacqueline Nguyen — US Court of Appeals for the Ninth Circuit
By contrast, Watford's colleague Nguyen — who was born in Vietnam and would be the first Asian-American justice — was confirmed the same month as him in 2012, by a whopping 91-to-3 margin. She's also a UCLA Law alum, and is only 50, meaning she'd have a nice long tenure. She got some criticism from liberals for filing a lone dissent defending a police officer who tased an innocent bystander, but if anything that should help her win over Republican votes. She also is far better versed in hovercraft moose-hunting jurisprudence than any other SCOTUS contender.
But Nguyen is also, for better or worse, a bit of a blank slate without that many major decisions on her record (with a possible exception being a First Amendment case where she and two Republican colleagues found a school uniform policy unconstitutional). That makes it hard to judge what kind of justice she'd be, which could make both Obama and the Senate more hesitant.
Pam Karlan — Stanford Law School
The other six options here assume that Obama wants to maximize the odds of his nominee getting through the Senate. But maybe that's not the play here. Maybe he thinks that no one he nominates has any chance, and that if he does pick someone he'll poison their odds for Hillary Clinton or Bernie Sanders should they take office next year. In that case, he doesn't want to nominate someone like Kelly or Srinivasan, who could conceivably pass a Republican Senate after the presidential election. He wants someone who's great but already doomed.
Enter Pam Karlan, one of the most celebrated liberal law professors of her generation and a former deputy assistant attorney general for voting rights under Obama. Openly bisexual and with a female partner, she famously wrote Justice Harry Blackmun's dissent in Bowers v. Hardwick, the since-overturned Supreme Court decision validating state bans on gay sex. She has attacked the Roberts Court for overly constraining Congress's power, and thinks the Court is too soft on both the death penalty and prison conditions.
"Would I like to be on the Supreme Court?" she once said in a graduation speech at Stanford Law. "You bet I would. But not enough to have trimmed my sails for half a lifetime." She hasn't trimmed her sails, and as such has a paper trail that would make her hard to confirm even with a Democratic Senate. But that makes her a perfect "fuck you" nominee if Obama just wants to wait until his successor takes over.