Nearly 30 years ago, Antonin Scalia was approved by the Senate in a unanimous vote. Analysts are projecting a much tougher road for the next nominee. We look at four potential nominees: California Attorney General Kamala Harris, DC Circuit Judge Sri Srinivasan, Ninth Circuit Judge Paul Watford and Eighth Circuit Judge Jane Kelly.
Here’s the transcript of the interview:
Juan Gonzalez: And, Scott Horton, what about this issue of the—what happens from here on in and also the choices that President Obama has? Does he name a more moderate justice and then really make it difficult for the Republicans to continue to block a nomination or does he attempt to go to a more liberal justice and really sharpen, in the upcoming election, the choices that voters have when they’re electing a president?
Scott Horton: Well, you know, to me, the political elements here have never been sharper for the Supreme Court. So I think we’re going to see this whole issue of the Supreme Court front and center in the election campaign for the new president. It’s always there in the final rounds of the election; we usually have candidate saying, “Who is selected now as president will determine the makeup of the Supreme Court.” And now we’re in the position where that literally is going to be true. So it will be central.
As for Obama’s options, it seems to me he’s going to be—he’s going to play a tactical game at this point, knowing what the position is of the Republican majority and their leader. And it seems to me the Republicans have put themselves in a position in which they’re going to be subject to ridicule based on their own conduct. I think it’s likely that Obama will put forward a nomination of a moderate with outstanding credentials and probably someone who has recently been approved by the same Republican Senate by a strong vote and watch them cope with that, because I think if their—if their tactic is simply to block, that’s not going to help them in the presidential election.
Juan Gonzalez:: And what would be some of those—who would be some of those potential folks that he might name?
Scott Horton: Well, Sri Srinivasan, I think, is the most commonly cited figure right now, but I think we’ve got a group, principally, of court of appeals judges who were approved over his two terms as president, who have gotten substantial support, including support from Republicans. There are a half-dozen of them in the holding pen right now. Any of them may be put forward. But I doubt it’s going to be the left equivalent of a Nino Scalia. It’s going to be someone who is more of a moderate, more of a centrist, someone who in normal times would be able to count on Republican support.
Amy Goodman: Ian Millhiser, can you talk more about Sri Srinivasan, who he is and his significance?
Ian Millhiser: Sure. I mean, Sri is—I’ve seen him argue cases before. He’s one of the most brilliant litigators of his generation, truly breathtaking intellect. He also, though, clerked for two Republican judges—for a Republican court of appeals judge and then for Sandra Day O’Connor on the Supreme Court. He spent many years of his careers at a major corporate law firm. So he’s very much perceived as a sort of middle-of-the-road moderate, the sort of candidate a Democrat would put up if they wanted to extend an olive branch and say, “Look, like, I’m going to meet you halfway here by picking someone who wouldn’t necessarily be a Democrat’s first choice, but someone who everyone agrees is an extraordinary intellect,” someone who was confirmed 97 to zero the first—when he was confirmed to his current job on the second-highest court on the land. And so I think Sri is going to be attractive to the White House.
There’s a—you know, there are some other candidates—Paul Watford on the Ninth Circuit—
Amy Goodman: Just on Sri Srinivasan, he would be the first Indian American. He’s young, he’s 48 years old.
Ian Millhiser: Yeah.
Amy Goodman: Labor unions were not thrilled when he went up to this court, not feeling that his history of representing corporate clients would bode well for them.
Ian Millhiser: Yeah, that’s right. I mean, what you’re looking at with Sri—and, you know, again, the fact that he had certain kinds of clients as a lawyer doesn’t necessarily predict how he’s going to act as a judge or a justice. But everything we know about him now tells us brilliance and centrism.
Amy Goodman: Can you talk about Paul Watford?
Ian Millhiser: Sure. Judge Watford is a judge on the Ninth Circuit. He has a similar resume to Sri. He worked at a corporate law firm for many years. Unlike Sri, Judge Watford is—was a clerk for Justice Ginsburg. So he has a similar profile of someone who’s been at the top of the profession since the beginning of his career, a great intellect, someone who shouldn’t be perceived as a bomb thrower and should be perceived as more of an olive branch, because he spent most of his career not doing anything that’s really associated with liberalism, just, you know, going out there and making money as a lawyer. So, you know, if it’s Watford, if it’s Srinivasan, if it’s either of those judges, under normal circumstances, that would be an olive branch to the Republicans.
Amy Goodman: And, Linda Hirshman, can you talk about Kamala Harris, attorney general of California, running for Senate—
Linda Hirshman: Right.
Amy Goodman: —to fill Barbara Boxer’s seat?
Linda Hirshman: Right. She would be my selection, if she’s—you know, if she passes the vetting process, because I would just love to see the next several months occupied with a bunch of old white male Republicans pounding on the first Asian-American, African-American attorney—female attorney general of the state of California.
But I think that it’s mostly about the optics. As I listen to my colleagues just now discussing the pros and cons of the olive branch possibilities and so forth, I think that none of this really matters at all, because the Republicans, as far as I’ve been able to observe, do not care about the universe of perfect logic. And the fact that Srinivasan was confirmed 97 to nothing just recently is an argument which reasonable people would make, but I don’t think it matters. I think that this is about power and optics. And if you are going to be realistic about what’s going to happen, then you have to think about who would make the most optically advantageous appointment. And I think Kamala Harris would be very high on my list of people who would do that.
Juan Gonzalez:: Another—
Linda Hirshman: That being said—
Juan Gonzalez:: I’m sorry. Another person who’s been mentioned is Jane Kelly from the Eighth Circuit Court of Appeals. Could you talk about her?
Linda Hirshman: I would be—I would be inclined more in the direction of an African-American woman like Kamala Harris. I don’t—I don’t think that it’s about the woman thing right now.
Amy Goodman: Because?