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Berkeley Buzz: Here’s the Name Now Most Floated for the Supreme Court Vacancy

February 18, 2016
by Krissy Eliot

As the nation waits to see how (or even if) the Supreme Court vacancy caused by the death of Justice Antonin Scalia gets filled this year, there’s a lot of buzz on the UC Berkeley campus about one name in particular: Indian-American jurist Sri Srinivasan. Not only do several law professors cite him as their preferred pick, but Cabinet member–turned–public policy professor Robert Reich took to Facebook to say that his “mole in the White House” told him that Obama would, in fact, nominate Srinivasan.

Not that the choice is unequivocal—Reich, the Labor Secretary under President Clinton, questioned whether the judge was sufficiently progressive. And at the opposite pole of the political spectrum, Berkeley Law professor John Yoo—best known for providing the George W. Bush administration with a legal justification for using “enhanced interrogation” (elsewhere known as torture) to combat terrorism—is encouraging Senate Republicans to block Democrat Obama’s appointment, regardless.

“The Senate should refuse to confirm anyone, to protect the Constitution from yet another Obama attack on its fundamental purpose and structure,” Yoo argues in a piece in the National Review, in which he assails Obama for regarding the Constitution as “anything other than an obstacle to be overcome on his way to a progressive paradise…. Senate Republicans can honor Antonin Scalia by preventing his seat from being filled by a president who has so disregarded the constitutional text that the late justice did so much to restore.”

Such a stance is seen as obstructionist by many within the halls of Berkeley Law, where several legal scholars note that the country elected Obama president for a full four years, and that the Constitution grants him the power to nominate Supreme Court justices with the advice and consent of the Senate. The fact that the Senate is held by a Republican majority leaves many to conclude that Srinivasan could be an acceptable choice for the court’s ninth seat—the death of Scalia leaves the current court generally split in half, with Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas and Anthony Kennedy on the right, and Justices Ruth Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor on the left.

Federal Judge Sri Srinivasan

Scalia’s surprise sayonara to the land of the living means that if Obama succeeds in winning approval for his nominee, the result will undoubtedly be a more progressive court. The result: Senate Republicans are split between those such as Senate Majority Leader Mitch McConnell, who has vowed to put the kibosh on anyone the POTUS nominates without so much as a confirmation hearing, and those who are open to the idea of holding hearings before said kiboshing.

In such a quandary, Berkeley Law professors Peter Schuck and Daniel Farber suggest Srinivasan, who was nominated by Obama in 2013 for the U.S. Court of Appeals in the D.C. Circuit.

“I think Sri Srinivasan is probably the best pick, taking into account the political situation as well as ability,” Farber said via email. “He served in the Bush Administration, was confirmed 97–0 to his present position, and hasn’t done anything super-controversial on the bench. In political terms, nominating an Asian immigrant would probably be useful for the Democrats. Srinivasan seems like a very level-headed, capable lawyer—perhaps not likely to be a huge pioneer judicially, but someone who will clearly do a very good job.”

Srinivasan was born in the northern Indian city of Chandigarh, and then immigrated to the U.S. when he was 4, settling with his parents in Lawrence, Kansas. He earned a joint degree in business and law from Stanford, to the supposed chagrin of his father—a UC Berkeley Fulbright scholar who upon hearing Srinivasan’s choice of school (according to a Stanford blog) “suggested his son compose an essay explaining his choice of Stanford over Cal.” Srinivasan “dutifully did so” and apparently it was “enough to persuade him.” Srinivasan went on to become a law clerk in 1981 to former Supreme Court Justice Sandra Day O’Connor, served as a corporate litigator, and worked in the office of the U.S. Solicitor General from 2002 to 2007, before becoming a federal judge. He has argued 25 cases before the Supreme Court—including the Defense of Marriage Act, which he opposed on behalf of the United States.

Schuck said in an email that it’s hard to see any reasonable objection to Srinivasan: “The politics of the moment will certainly limit President Obama’s nomination, even more than usual due to his lame-duck status and the absence of liberal Republican senators,” Schuck said. “There is a very small chance that a compromise might be reached in which Obama would nominate a moderate-to-conservative Democrat with the explicit understanding that s/he would resign as of summer 2017 to enable the new president to nominate his/her own person. This would allow the Court to operate at full force until then.”

Reich reasoned that because the Senate confirmed Srinivasan unanimously just three years ago, it will be difficult for Republicans to oppose him—adding that he suspects Obama can’t do better than Srinivasan. Nonetheless Reich, a supporter of presidential contender and Democratic Socialist Sen. Bernie Sanders, expressed qualms, despite the fact that Srinivasan, as a former Deputy Solicitor General, argued in favor of affirmative action and against Indiana’s restrictive voter ID law.

“Before the Obama administration, Srinivasan worked for five years in George W. Bush’s Justice Department. Prior to that, as an attorney in the private firm of O’Melveny & Myers, he defended Exxon Mobil in a lawsuit brought by Indonesians who accused the company’s security forces of torture, murder, and other violations against their people; successfully represented a newspaper that fired its employees for unionizing; and defended Enron’s former CEO, Jeffrey Skilling, later convicted for financial fraud,” Reich wrote. “But in these instances, too, it could be argued he was just representing clients. Another clue: After graduating Stanford Law School in 1995, Srinivasan clerked for two Republican-appointed jurists—Judge J. Harvie Wilkinson III and Supreme Court Justice Sandra Day O’Connor—both of whom were considered moderate.”

Of course, Washington is notoriously fickle, so Srinivasan is far from a safe bet even to garner the nomination. Names get floated, press and public reaction is gauged, decisions are recalibrated. And certainly plenty of other prominent names are aloft as well, from Attorney General Loretta Lynch to Minnesota Sen. Amy Klobuchar to California Attorney General Kamala Harris. Whoever the choice, will it matter with Republicans digging in their heels?

“I think it’s perfectly clear that the Republicans have announced that they’re going to stop anybody that Obama would reasonably put forward, even if he tries his hardest,” said Berkeley Professor of Public Law Jesse Choper, noting that Srinivasan would also make the most sense as a nominee, but he doesn’t think he will win confirmation.

Article II of the Constitution doesn’t explicitly compel the Senate has no constitutional obligation to fill the vacancy; the POTUS can appoint justices, but only if the Senate gives the OK. The Senate can sit on any proposal from the executive branch, and they have a right to delay or reject nominees. And as Yoo points out, it’s not like the court will be unable to function with an even liberal/conservative split this year.

“Republican senators and the presidential candidates should reject the claim that they have an obligation to fill Justice Scalia’s vacancy before the election,” Yoo said. “Some may suggest that the Court needs nine members to function properly. This argument is simply untrue…. Even with only eight members, the justices will still vote. The Court will still issue decisions, just as it does when a justice is recused. The justices can even decide to hold over a case for next year, when it comes back up to full strength.”

Choper agreed that an even split doesn’t mean decision-making is at a standstill; he noted that most Constitutional cases actually are rarely decided by a single vote. “I’d say less than two thirds of the [Supreme Court] cases are decided 5–4. And some are not along partisan lines at all,” he said, noting it isn’t uncommon for liberals and conservatives to vote together depending on the issue. “Last term of the Supreme Court there were a total of about 70 cases … 40 percent of them were unanimous. Of the 70, 30 of them presented decisions with constitutional implications, then out of those 30, there were 14 5–4 decisions last term.”

And, as Yoo points out, even if they do divide 4–4 on a case, the result is that the decision of a lower federal court simply stands. The Supremes “can always take the issue in another case in the future. In several of the most important cases this term, it is not even clear that Justice Scalia would have made the difference,” he observed.

It goes without saying that the eventual appointment of anyone who isn’t Scalia to the Court will be a big change—considering that Scalia’s originalist perspective has greatly influenced the Supreme Court for years.

In his speech on the confirmation of Chief Justice John Roberts, George W. Bush’s Supreme Court nominee during the 109th Congress, Obama suggested he was not in favor of an originalist way of interpreting law and text—and that judgments need wiggle room for particularly difficult cases.

“The problem I face—a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts—is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases—what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”

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