The Supreme Court Nominee-in-Waiting
April 9, 2013
Posted by Jeffrey Toobin
The next Supreme Court confirmation hearing begins on Wednesday afternoon, April 10th. Technically, Sri Srinivasan is just a candidate for the United States Court of Appeals for the D.C. Circuit, but few are misled. The stakes in this nomination are clear: if Srinivasan passes this test and wins confirmation, he’ll be on the Supreme Court before President Obama’s term ends.
The D.C. Circuit has long operated as a Supreme Court farm team (John Roberts, Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg played their AAA ball there), and Republicans have worked with zeal, and amazing success, to keep Obama from placing a single judge on that court. Just last month, Caitlin Halligan, an eminently qualified New York prosecutor whose confirmation had been shamefully blocked by Senate Republicans for more than two years, withdrew her candidacy. Srinivasan is next up for consideration.
Srinivasan, who is forty-six years old, is currently the Obama Administration’s principal deputy solicitor general. He’s had twenty or so arguments in the Supreme Court, including part of the Administration’s attack on the Defense of Marriage Act last month. He’s been a corporate litigator at O’Melveny & Myers; a junior lawyer in the Office of the Solicitor General; and a law clerk to J. Harvie Wilkinson, who is a moderate conservative on the Fourth Circuit, and then to Sandra Day O’Connor. He earned degrees from Stanford in college, law school, and even business school; he grew up in Lawrence, Kansas, where his parents taught at the state university.
When Srinivasan’s name first surfaced as a possible nominee to the federal bench, early in Obama’s first term, he drew opposition from labor groups, who appeared to take issue with some of his stands as a private lawyer and in George W. Bush’s Justice Department. (He was a career lawyer, not a political appointee, under Bush.) Lately, those objections to Srinivasan have become muted or disappeared altogether. In part, this may be because those kinds of challenges to a nominee are inherently unfair; lawyers, after all, represent clients.
More importantly, perhaps, liberal groups have become so frustrated with President Obama’s dithering on judicial nominations that they are happy to see him put forward almost any name. There are four vacancies on the D.C. Circuit, and Obama has just one current nominee for that court. There are, in total, eighty-seven vacancies on the federal courts, and right now the President has just twenty-five nominees to fill those seats. In light of the tactics of obstruction and delay that Republicans have used against his nominees, Obama’s failure to fill the pipeline will cripple his efforts to leave a broad judicial legacy.
In fairness, Obama’s team has at least mustered a comprehensive effort on Srinivasan’s behalf. Most notably, twelve former Solicitors General, including such Republican notables as Kenneth Starr and Paul Clement, have signed a letter endorsing Srinivasan’s confirmation. He has the sort of impeccable credentials that are much beloved by the Supreme Court bar, though Srinivasan’s own views on the Constitution are more difficult to discern. He has written many briefs but few articles that reveal his own thinking. He is a protégé of Walter Dellinger, the acting Solicitor General in the Clinton Administration and a (mostly) beloved (mostly) liberal figure in the world of the Supreme Court. The safe assumption seems to be that Srinivasan would be the same kind of moderate liberal as Sonia Sotomayor and Elena Kagan (and Ruth Bader Ginsburg and Stephen Breyer, for that matter).
The real issue with a potential Srinivasan nomination would be political. Ginsburg is the justice most likely to retire in the next two years. Would Obama select a woman to take her place? Tom Goldstein, the proprietor of the indispensable SCOTUSblog, thinks the President will feel compelled to keep three women on the court. He points to Kamala Harris, the attorney general of California, as the most likely choice. (It’s now well known that the President already finds Harris an, er, attractive office holder.) Another possibility is Jacqueline Nguyen, a Vietnamese immigrant who now serves on the Ninth Circuit. But there hasn’t been an active politician like Harris named to the Court since Earl Warren in 1953, and Nguyen is little-known outside California. (If the President does go for a politician, I think the more likely possibility is Amy Klobuchar, the senior Senator from Minnesota.) I am less sure than Goldstein that Obama will nominate a woman to replace Ginsburg. There is no female candidate as obvious as Sotomayor was in 2009, and Srinivasan would, as the first Indian-American on the court, be a history-making choice.
Plus, if Srinivasan runs the confirmation gauntlet now, it will be difficult for Republicans to argue that he’s unconfirmable just months later. His credentials would surely appeal to Obama, who has a fondness for technocrats, and his thin paper trail would make him difficult to attack. Which is why it looks very much like this hearing isn’t just a test for Srinivasan—it’s a dress rehearsal.
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