Who Is, and Is Not, On the Demand Justice #SCOTUS (Not-So) Shortlist?

Omitting all "partners at corporate law firms" excludes most judges from Hillary Clinton's hypothetical shortlist

|The Volokh Conspiracy |


Demand Justice has released a "shortlist of possible [Supreme Court[] nominees in the next Democratic administration." The group selected 32 "brilliant lawyers who have spent their careers fighting for progressive values and represent the diversity of our nation."

Who was selected? The nominees generally fall into 5 broad categories:

  • Academics: Michelle Alexander (Union Theological Seminary),  James Forman, Jr. (Yale), Pamela Karlan (Stanford), M. Elizabeth Magill (Virginia), Melissa Murray (NYU), Bryan Stevenson (NYU), Zephyr Teachout (Fordham), Timothy Wu (Columbia),
  • Progressive Litigators: Brigitte Amiri (ACLU), Nicole Berner (GC SEIU), Deepak Gupta (Gupta Wessler), Dale Ho (ACLU), Sherrilyn Ifill (NAACP LDF), Shannon Minter (National Center for Lesbian Rights), Nina Perales (MALDEF), Thomas A. Saenz (MALDEF), Cecillia Wang (ACLU),
  • Current/Former Government Officers: Xavier Becerra (California AG), Sharon Block (one of the three NLRB appointments at issue in Noel Canning), Vanita Gupta (Former Obama DOJ), Lawrence Krasner (Philadelphia DA), Catharine Lhamon (U.S. Commission on Civil Rights), Katie Porter (House of Representatives), Jenny Yang (Former EEOC Chair)
  • Federal Judges: Richard F. Boulware (D. Nev.), Jane Kelly (8th Circuit), Cornelia Pillard (D.C. Circuit), Carlton Reeves (S.D. Miss.)
  • State Judges: Mariano-Florentino Cuéllar (California Supreme Court), Anita Earls (North Carolina Supreme Court), Leondra Kruger (California Supreme Court), Goodwin Liu (California Supreme Court),

Who didn't make the cut? We can speculate. In July 2016, the Hill published a potential shortlist from a Clinton administration. Of these 11 names, only three made it onto the Demand Justice List: Judge Jane Kelly (8th Cir.), Justice Goodwin Liu (California Supreme Court), and Justice Mariano-Florentino Cuéllar (California Supreme Court). Eight names were left off the Demand Justice list:

  1. Chief Judge Merrick Garland (D.C. Cir.)
  2. Judge Sri Srinivasan (D.C. Cir.)
  3. Judge Paul Watford (9th Cir.)
  4. Judge Jacqueline Nguyen (9th Cir.)
  5. Judge Lucy H. Koh (N.D. Cal.)
  6. Judge Patricia Millett (D.C. Cir.)
  7. Senator Amy Klobuchar (D-Minn.)
  8. Senator Cory Booker (D.-N.J.)

Garland's re-nomination was never a serious option. And it isn't clear that Demand Justice considered elected officials, such as Klobuchar and Booker. But what about the other Obama appointees? The not-so-shortlist excluded many possible nominees-by design. Demand Justice explains:

None of the lawyers on our list are corporate lawyers, in keeping with our call for the next president to avoid nominating any more lawyers who have been partners at corporate law firms or in-house counsel at large corporations. Instead, our list boasts a wide range of former public defenders, public interest lawyers, academics, and plaintiff's lawyers.

Judges Paul Watford, Sri Srinivasan, Jacqueline Nguyen, Lucy H. Koh, and Patricia Millett all worked in private practice. Those careers, apparently, rendered them ineligible for the Supreme Court. Also excluded is Judge Ketanji Brown Jackson (D.D.C), whom Tom Goldstein tapped to replace Justice Scalia. She worked in Big Law.

Who else would not make the list? Justice Sotomayor was a partner at Pavia & Harcourt. She would have been out. Justice Kagan briefly served as an associate at Williams & Connolly. Would she have made the cut?

Ultimately, I welcome these lists. They provide the public with insights into the type of jurists an administration would consider. Though, it's difficult to know how much weight to put on Demand Justice's roster. Unlike President Trump's original list, the current list was not released–or even endorsed–by any campaigns.