New England brimming with potential Supreme Court appointments

By Evan Lips | February 16, 2016, 20:35 EST

WASHINGTON, D.C. – Speculation surrounding President Barack Obama’s short list of candidates to replace U.S. Supreme Court Justice Antonin Scalia, who died suddenly last week, has focused on Sri Srinivasan, a judge on the U.S. Court of Appeals for the District of Columbia Circuit.

“Any list begins with Sri Srinivasan,” CNN.com recently gushed about the 48-year-old jurist.

That list, however, could also include several prominent New Englanders.

Names being bandied about include not only former Gov. Deval Patrick but also several potential candidates with connections to Harvard Law School.

One such name is David J. Barron, a federal judge on the U.S. Court of Appeals for the First Circuit in Boston. Barron, who attended both Harvard College and Harvard Law School, taught at the law school from 1999 until 2009, when Obama offered him a position at the U.S. Department of Justice.

Barron quickly made a name for himself.  In 2010 it was Barron who was tasked with defending Obama’s decision to target American citizen-turned-terrorist, Anwar Al-Awlaki, in a drone attack. Barron, the acting assistant attorney general at the time, penned a memo defending the decision. Barron’s central argument revolved around the idea that Awlaki’s killing was legal since capturing him was impossible.

“We conclude that the justification would be available because the operation would constitute the ‘lawful conduct of war’ — a well-established variant of the public authority justification,” Barron wrote.

Awlaki met his end during a 2011 drone strike in Yemen.

An equally controversial choice for the High Court would be Maine native Patricia Ann Millett. Like Srinivasan, Millett, 52, is a judge on the U.S. Court of Appeals for the District of Columbia. Prior to her 2013 appointment to the appellate court, Millett headed the legal powerhouse Akin Gump Strauss Hauer & Feld’s Supreme Court practice group. At the time of her nomination, Millett had argued 32 cases before the Court.

Millett is also familiar with high-stakes nomination battles.

In 2013, when Obama nominated her to the D.C. Circuit, Millett eked out Senate Judiciary Committee approval by a party line 10-8 vote. Millett’s full Senate confirmation avoided a filibuster as then-Senate Majority Leader Harry Reid (D-Nevada) and other Democrats set up the now-famous ‘nuclear option’ vote — meaning the rules were now forever changed when it comes to approving presidential nominees.

As a result, appointments such as Millett’s no longer require a supermajority of 60 approving votes and only require a simple majority. The new rules, however, do not apply to Supreme Court nominations.

Millett won full Senate approval in a 56-38 vote. Only two GOP Senators voted in Millett’s favor: Alaska Sen. Lisa Murkowski and Maine Sen. Susan Collins.

Sen. Elizabeth Warren (D-Mass) has also received mention as a potential Supreme Court nominee. One high-profile advocate touting Warren’s candidacy is Congressman Alan Grayson, (D-Fla) who took to the Huffington Post on Monday to urge Obama to nominate the Cambridge Democrat, a former professor at Harvard Law.

Grayson argues that a Warren filibuster would be unlikely given the “clubby” nature of the Senate:

“Would obstructionists in the Senate filibuster an Elizabeth Warren appointment, or vote against her? Maybe. But that seems like poor form against one of their own, for a place as clubby as the U.S. Senate.”

Grayson’s Huffington Post missive also features an online petition.

The last sitting senator to be appointed to the Supreme Court was Ohio’s Harold Burton in 1941.

A fourth potential nominee from New England is Harold Hongju Koh, the Sterling Professor of International Law at Yale Law School. Boston-born Koh graduated from Harvard Law in 1980. He was dean of Yale Law School from 2004 until 2009, when Obama tapped him to serve as a legal adviser to the State Department. In this capacity, Koh served as then-Secretary of State Hillary Clinton’s top legal counsel.

Like Barron, Koh openly supports the use of aerial drones in killing targeted terrorists. In a March 26, 2010, speech delivered at the American Society of International Law, Koh outlined the Obama administration’s legal justification in using drone strikes.

The online legal journal InsideJustice.com noted that Koh’s comments marked the first time the Obama administration had publicly outlined the legal justifications for drone usage.

“With respect to the subject of targeting, which has been much commented on in the media and international legal circles, there obviously are limits to what I can say publicly,” Koh said at the time. “What I can say… that U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles comply with all applicable law, including the laws of war.”

In 2013 Koh returned to Yale Law School to serve as a full-time professor.