Supreme Court Watch Who's next on Obama's Supremes list? Candidate has made short list twice before

By Kimberly Atkins

The Daily Record Newswire

President Barack Obama has already done what few other presidents have in less than two years in office: appointed two U.S. Supreme Court justices.

But if Obama gets the chance to appoint a third justice, chances are he will turn to a candidate that was already on his short list the first two times around: D.C. Circuit Judge Merrick Garland.

Experts say Garland is the model nominee for a president facing a politically discordant time: someone who is smart, yet uncontroversial.

"He is acknowledged by all to be brilliant," said Tom Goldstein, Supreme Court litigator for Akin Gump and founder of SCOTUSblog.com. "His opinions avoid unnecessary, sweeping pronouncements," and of everyone on Obama's short list, Garland is "least likely to prompt a polarizing confirmation fight."

When Justice David Souter announced his retirement in May 2009, White House officials quickly assembled a short list of candidates from which the president would chose a nominee. That list included then 2nd Circuit Judge Sonia Sotomayor, who would ultimately replace Souter, and Solicitor General Elena Kagan, who would later replace Justice John Paul Stevens when he retired in 2010.

Garland was also on that list, White House officials confirmed. Like Sotomayor, Garland has prosecutorial experience, having served as an assistant U.S. attorney for the District of Columbia before joining Arnold & Porter as a partner. Like Kagan, he also has administration experience, having worked in the Criminal Division of the Justice Department during the Clinton administration. Among his duties was overseeing the prosecution of the Oklahoma City bombing case.

The only impediment to Garland's bid to replace Souter or Stevens was the White House's desire for more diversity on the Court, which at the time of Souter's retirement had only one woman and no one of Latin descent. Now that Kagan and Sotomayor have shifted those demographics, Garland is primed for top consideration.

Another factor for the White House is selecting a candidate who will win easy confirmation, which could be a tough task given the tight ideological divisions in the Senate as well as on the Court itself. But Garland has already earned the vocal support and respect of Republicans as well as Democrats. This is an especially important consideration, considering the Democrats' slimmed down majority in the Senate in the wake of the recent election.

In May, Sen. Orrin Hatch, a GOP member of the Senate Judiciary Committee, which vets judicial nominees, said he would have supported Garland had he been nominated for the seat vacated by Stevens.

"I have no doubts that Garland would get a lot of votes," Hatch said at the time, after Stevens' retirement announcement. "And I will do my best to help him get them."

Published: Fri, Nov 19, 2010

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