If President Barack Obama has the opportunity to appoint another Supreme Court justice during his second term, he has a distinct short list, according to legal analyst Jeffrey Toobin.
"He will be in a very different position than he was when he nominated Sonia Sotomayor and Elena Kagan in the first and second years of his presidency. Presidents generally pick justices who were appointed to the federal appellate courts by presidents of their own party; given enough time, they can pick federal judges whom they appointed themselves. Now, unlike in 2009 and 2010, Obama has his own farm team of appellate judges," Toobin wrote Tuesday in The New Yorker,
where he has been a staff writer since 1993.
Toobin, who is also the senior legal analyst for CNN, cited Obama administration insiders — and knowledgeable outsiders — to name a list that includes Sri Srinivasan, 47, of the D.C. Circuit; Paul Watford, 46, of the Ninth Circuit; David Barron, 46, nominated to the First Circuit; Jane Kelly, 49, of the Eighth Circuit; and Patricia Ann Millett, 50, of the D.C. Circuit.
Calling Srinivasan the frontrunner, Toobin said, "He has a great (and marketable) American story. The child of immigrants from India, Srinivasan grew up in Lawrence, Kan., earned a J.D./MBA from Stanford, and clerked for a pair of Republican judges, J. Harvie Wilkinson III and Sandra Day O'Connor."
"As Obama's deputy solicitor general, Srinivasan argued 25 cases before the high court and then won confirmation to the D.C. Circuit last year by a vote of 97-0," he said.
Toobin said Kelly and Millet are more likely to be nominated if the GOP takes control of the Senate in November. "To the extent that it's possible to determine, they have a more moderate political profile than those listed above, and so perhaps a better chance of being confirmed," he said.
If Republicans win the White House in 2016, there is an alternative "farm team" in place, Toobin said, noting that it "certainly includes Paul Clement, the former solicitor general under President George W. Bush; Brett Kavanaugh, a judge on the D.C. Circuit (and a principal author of the Starr report); and Diane Sykes, a judge on the Seventh Circuit."
"That's one reason why circuit-court appointments and confirmations are so important," Toobin said. "The circuits are the fields where Supreme Court justices grow."
Meanwhile, the oldest Supreme Court justice, Ruth Bader Ginsburg, who just turned 81, has not indicated she is close to stepping down.
"Justice Ginsburg shows no signs of intellectual decline, questioning lawyers with slicing precision during oral arguments," The Economist
reports. "She also stays in physical shape: Though she has given up water-skiing, the justice can still drop and give her trainer 20 'male' pushups."
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