WASHINGTON — The White House is considering nearly a half-dozen relatively new federal judges for President Barack 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.
As Obama prepares for what probably will be his last opportunity to try to shape the high court after the sudden death of Justice Antonin Scalia, the president faces an unprecedented hurdle, with the Senate’s Republican majority vowing to ignore any nominee he proposes.
Based on interviews with legal experts and others, including some who have spoken in recent days with Obama administration officials involved in the vetting process, the president is leaning toward a sitting federal judge to fill the vacancy, and probably one the Senate confirmed with bipartisan support during his tenure.
These insiders, who insisted on anonymity to discuss private conversations, noted that the administration is winnowing its list of candidates but could add more.
The candidates under consideration include:
• Two judges who joined the influential U.S. Court of Appeals for the District of Columbia Circuit in 2013, Sri Srinivasan and Patricia A. Millett;
• Jane L. Kelly, an Iowan appointed that year to the 8th U.S. Circuit Court of Appeals;
• Paul J. Watford, a judge since 2012 on the California-based 9th U.S. Circuit Court of Appeals;
• And a lower-court judge, Ketanji Brown Jackson, appointed in 2013 to the U.S. District Court for the District of Columbia.
Each candidate would offer a distinctive attribute for a president with a penchant for fostering diversity. Srinivasan would be the high court’s first Asian-American and first Hindu. Kelly would be the first with a public defender’s background. Watford or Jackson would add a second African-American to the court.
And as with Obama’s last nominee in 2010, Justice Elena Kagan, Millett would increase the number of women on the nine-member court.
None has carved out a distinct identity in their views on the role of law or their positions on any divisive legal question facing the nation and the courts, according to an examination of the judges’ public statements and writings, their mentors and their career paths.
In the current climate of acrid partisanship, White House officials regard the opaqueness of their views as a selling point, say those familiar with the administration’s thinking.
White House officials have declined to discuss details of the president’s decision-making, other than to say that Obama intends to make a timely nomination.
A White House spokeswoman, Brandi Hoffine, added, “The list is not closed at this point, and the president continues to review materials on various potential nominees.”
Another name being vetted by the White House is one with a longer judicial record: Merrick Garland, chief judge of the U.S. Court of Appeals in Washington. He is a moderate who has served on the court for nearly two decades and was considered by Obama for a previous Supreme Court vacancy.
According to one person knowledgeable about the vetting process, the White House initially thought about Attorney General Loretta Lynch, who would satisfy the eagerness of some civil rights groups for a black female nominee, but she is no longer under consideration.
The White House’s preference for a nominee with few ideological fingerprints stands in contrasts with this year’s presidential candidates, Republican and Democratic alike.
The Republican front-runner, billionaire businessman Donald Trump, has said he would appoint justices with conservative positions, asking potential nominees about their view on abortion and selecting ones who support gun-ownership rights and allowing business owners who oppose contraception on religious grounds not to offer such coverage to their employees.
The leading Democrat, former secretary of state Hillary Clinton, has said that she would favor nominees who support abortion rights, same-sex marriage, gay rights, voting rights and overturning Citizens United, the court’s 2010 campaign finance decision.
Among the judges Obama is considering, none was asked about any of those issues during their Senate confirmation hearings for lower courts. Nor is there any other public record of their views.
During their confirmations over the past few years, the judges under consideration for the high court carefully avoided disclosing views on the role of the law or on specific legal issues.
Such reticence was on display in April 2013, when Srinivasan sat alone at the witness table in a resplendent paneled hearing room, facing Senate Judiciary Committee members weighing his nomination to the D.C. Circuit.
One of the first questions was predictable: Briefly describe your judicial philosophy. “I do not have an overarching, grand, unified judicial philosophy that I would bring with me to the bench if I were lucky enough to be confirmed,” Srinivasan replied.
In a written follow-up, Sen. Ted Cruz, R-Texas, a new senator and an old friend of Srinivasan’s dating back to their law clerk days, took another stab at the question, asking which Supreme Court justice of the past half-century had a philosophy most akin to his own.
Although a seasoned Supreme Court practitioner, Srinivasan replied that he could not answer. “I do not have sufficient familiarity with the body of decisions of any particular justice of the Warren, Burger or Rehn quist courts,” he wrote.
Srinivasan went on to a Senate vote of 97-0 in favor of his confirmation.
Most of the judges being considered by the White House have been on the bench for two to four years — not much time to have amassed records of opinions. In comparison, of the seven current justices with previous judicial experience, their average tenure on the bench when they were nominated to the Supreme Court was 11 years.
