“the Supreme Court nominee in waiting”
–Jeffrey Toobin
It may take a while for some to learn how to say his name (the spelling isn’t phonetic), but Sri Srinivasan is the mostly likely nominee.
Padmanabhan Srikanth “Sri” Srinivasan is a United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit. He was confirmed by the United States Senate by a vote of 97–0 on May 23, 2013. Before being confirmed as a judge, he was the Principal Deputy Solicitor General of the United States and had argued 25 cases before the U.S. Supreme Court. He was also a lecturer at Harvard Law School. Srinivasan is known for having represented former Enron executiveJeffrey Skilling in his appeal before the U.S. Supreme Court, Skilling v. United States (2010).
The New York Times and NPR have already bandied about his name, but there are several political reasons why his nomination makes sense:
1. The senate confirmed him for appeals court 97-0. It will be hard to claim he’s not acceptable to the GOP.
2. He clerked for Sandra Day O’Connor. She’s a respected justice, and though liberals can clerk for conservative justices, the average person won’t get the distinction.
3. No one has said anything bad about him as an attorney he is highly regarded.
4. He’s well-qualified with ample government experience, including arguing cases in front of the Supreme Court.
5. He seems non-ideological, having represented big business, but also siding with more progressive causes.
6. He’s Indian American.
A well-regarded, non-ideological (it seems), GOP-approved attorney. He’ll be hard to oppose. His ethnic background also throws the Republicans a bitter pill; he took his oath of office with the Bhagavad Gita. There is no good reason (so far) for the other side of the aisle to oppose him, but they won’t want to give Obama the pleasure of replacing Scalia (God rest his soul) with someone who doesn’t foam at the mouth. Opposing his nomination, preventing the effective functioning of the Supreme Court is an ingredient in the recipe for disaster that 2016 is shaping up to be for the Republicans. In short, Srinivasan will be the bomb thrown in the GOP’s lap.
Srinivasan also sounds a bit like Obama himself:
“I don’t think anybody is going to suggest that he’s being put forth as the next Thurgood Marshall or Justice Brennan. He does not come out of that kind of background,” says Caroline Fredrickson, president of the progressive American Constitution Society. But, she argues, he is “extremely well qualified” and “probably has the perfect resume for anyone who would be nominated to the DC Circuit.” Doug Kendall, president of the liberal Constitutional Accountability Center, calls Srinivasan “unquestionably brilliant” but acknowledges that Srinivasan’s record “is not progressive-forward; it is as non-ideological as you can find.” (Neither organization has formally endorsed Srinivasan’s nomination).
Rejecting this guy will look really bad for the GOP. They will have no credible reasons to oppose him. If they reject him, they will hand the Democrats a campaign issue. We want government to work. We’re willing to compromise. The GOP just wants to obstruct things. Unenrolled voters want someone they think thinks as they think, I think. Srinivasan comes across as non-ideological. He’s the best a “reasonable” person can expect for Democratic replacement for an ideological conservative. This game isn’t over. It hasn’t really begun, but I’ll be very surprised if this guy isn’t nominated. Even if the GOP refuses to give this guy an up-and-down vote, there’s a political win for Democrats.
http://vps28478.inmotionhosting.com/~bluema24/2016/02/rip-scalia/#comment-377319
voters–Cruz and Rubio.
Good, but it is still Obama’s nomination to make. What we are saying is that a judge in the mold of Srinivasan is acceptable fo grass roots on the Democrat side.
the grassroots matter in this case. Obama’s choice to make, no votes needed for him. No need to appease the “grass roots.”
I’m talking politics and likelihood, not preference. I think he’ll turn out to be acceptable enough.
Perhaps it’s the way our commentary here has been framed — I’m nervous that the energy in support of this nomination is rather more driven by a desire to win a political point and rather less by a desire to shape the court in a critical period.
In my view, President Obama has an opportunity to shape the Supreme Court for decades to come, spotlight the obstructive nature of today’s GOP, or both. I fear that Mr. Obama is following the same playbook that caused him to take single-payer off the bargaining table before the other side even had a chance to say “no way” — he gave away negotiating room before negotiations even began.
I would like to see Mr. Obama offer a nominee who will clearly fall into the “liberal” side of the Court. I’d like to call the bluff of Mr. McConnell and the GOP — force them to force those GOP Senators from blue states to publicly choose party loyalty over the opinion of voters in their state.
It is very likely that two more justices will retire during the next President’s term. I’d like Mr. Obama to at least attempt to give his successor a 5-4 liberal split on the Court, rather than the other way.
I did the “math” last night. I’d prefer another John Paul Stevens, but the politics don’t work out that way. The GOP hold too many cards. Those blue state GOPers will have plenty of excuses–dumb as they would be.
Obama should have waited for the next President… Obama should have appointed someone less liberal… Plenty of ways to spin it. Srinivasan short-circuits all the stupid excuses.
With that said, I’d prefer to know that Srinivasan is a solidly liberal vote. I would suspect that Obama already knows, based on prior interviews for Appeals.
George H W Bush “knew” David Souter was conservative. Gerald Ford “knew” the same about John Paul Stevens.
Obama would know as much as anyone knows. He knows if Srinivasan is acceptable enough. He doesn’t know what he’ll turn out to be.
If he nominates a tried-and-true liberal, the political edge is dulled.
Srinivasan isn’t Scalia, and maybe that’s good enough.
Remember, we should still win the Presidency and the Senate this coming term, and there’s 2-3 other justices who will be getting replaced in the next 4-8 years one way or the other…. so there’s good reason to think even if Srinivasan isn’t some liberal firebrand, that the court can still become heavily liberal soon enough. (Maybe even to the point where Srinivasan will ‘look’ like one of the more conservative justices — and that would be a good position for the country at large.)
I suspect after Souter and Stevens – the interviews and vetting is different. As one of them said (or maybe it was Blackman) – I looked conservative on my Circuit bench but not when I went to a more conservative bench.
It was only the court that moved to his right. And with a few exceptions (his evolution on the death penalty, his staying far to the right on flag burning) the facts bare that out.
I suspect many here would call me a centrist and my progressive credentials have at least implicitly been questioned from time to time. One BMGer even once called me conservative to my face. However, in plenty of other contexts, including a local DTC, I’m the flaming liberal of the bunch. I assure you I don’t change my views between here and there.
He didn’t have buyers remorse like Bush over Souter or Ike over Warren. And like I said downthread, Stevens was on the right compared to the far left justice he replaced (Douglas), and I find his argument that he was in the center and the court lurched far to the right fairly credible. I still find it fascinating that Reagan pledged to nominate a woman, stuck to his guns, and didn’t particular care how she voted. I don’t recall him regretting that either.
and there are many reasons why he’s perhaps the favorite to replace Scalia (in addition to those mark-bail mentioned, his relatively young age — 48 — is a plus).
However, I think another interesting possibility, and perhaps only slightly less likely than Srinivasan, is Attorney General Loretta Lynch. There are plenty of good reasons: (1) Obama already knows her well and is less of a risk for him, (2) she’s a lifelong prosecutor, which is a tougher angle for conservatives to attack, and would add some much-needed occupational diversity on the Court, (3) while she was not approved of unanimously like Srinivasan, she’s already been confirmed by this very session of the Senate, (4) she’s already been vetted and hasn’t done anything obviously so controversial as AG to torpedo her chances for SCOTUS. And perhaps the most important reason: (5) she’s an African-American woman, and her being elevated to the Court would also make history, put Republicans in a tough spot, and I think do even more to fire up Democrats than Srinivasan when the Senate inevitably delays hearings.
It’s hard to argue with Srinivasan as the front-runner. But Lynch would be a pretty compelling choice as well.
Perhaps Mr. Obama could put forward Ms. Lynch, and set some sort of schedule for action. If the deadline passes without response from the GOP, or if her nomination is rejected, then pull that nomination and offer Mr. Srinivasan — an even LESS controversial choice.
The sitting president is a Democrat. A significant majority of Americans support the ideas of the Democrat Party, according to most polls. The GOP is over-represented in government, for a variety of reasons that we’ve discussed here. I think these are all strengths that Barack Obama can leverage.
I’d like to see Mr. Obama act from our strength.
is not political. Obama will not be able to leverage his power as a sitting president. His undeserved unpopularity plays more of a role than the majority of Americans supporting the ideas of the Democratic Party. Obama’s had a hell of a time doing so for the last 4 years. Too many of the GOP are ready to bring governance to a halt, and the arguably sane members of the party are afraid of being primaried. They have little or no incentive to side with the President.
There aren’t going to be enough people who truly care enough about SCOTUS to get involved in the ideological or jurisprudential aspects of the situation. They’ll look at it as a matter of fairness and reasonableness.
Again, I’m not arguing in favor of Srinivasan, just teasing out the politics and predicting the likelihood of his nomination.
Perhaps you underestimate Mr. Obama’s popularity, particularly among minority communities.
The issue with polls that ask questions like “Is fill-in-the-blank going in the right direction” is that it merges together groups that think that the entity is doing too much with those that think the entity is not doing enough.
If Mr. Obama is unpopular in minority communities, it is because they feel he has not done enough. A Supreme Court nomination that is viewed as “safe”, “middle-of-the-road”, “uncontroversial” and so on will reinforce that negative opinion.
On the other hand, a shell across the bow is likely to galvanize those same communities. The nomination of an imminently qualified black woman like Loretta Lynch that is then opposed by the GOP is likely to cause minority voters to turn out in November. This is particularly true if the GOP nominee is a polarizing figure like ALL THREE of the current front-runners who is likely to cause GOP voters to stay home.
I think that much of the disappointment in Barack Obama springs from his reluctance to leverage his role as America’s first black president. I hope that our side is smart enough to frame this as a matter of putting a stop to out-of-control racism, xenophobia, and white hysteria.
There is nothing “fair” or “reasonable” about the relentless attempts by the GOP to repeal Obamacare, to reverse Roe v Wade, to destroy Planned Parenthood, to deport and persecute tens of millions of immigrants, to continue the obscene plundering of American’s middle class by the very wealthy, and the long list of increasingly extreme GOP demands.
I think the hyperpartisanship of today’s GOP — their rejection of rational debate, their relentlessly repeated attempts to destroy government rather than pay for their own spending bills, their explicit and failed attempts to personally destroy Barack Obama — is a huge weakness.
I think the passing of Mr. Scalia has handed we Democrats a variety of ways to capitalize on that weakness, and I think we should jump on them.
Loretta Lynch is doing a good job as AG. Why sacrifice a good AG to put her through what will be a tough confirmation process with an uncertain chance of being nominated.
Not saying Obama would or should do it, but the idea that the GOP would make things difficult isn’t a good reason.
They’ll make it difficult for *anyone.*
I’m fine with Srinivasan, if Obama taps him. I’d be fine with Lynch, too. I just want our President to get his pick, and someone who would be a drastic improvement over Scalia.
…that Lynch is the most likely nominee.
SCOTUSblog is saying?
So not hearing literally with my ears if that’s what you meant.
why you didn’t check out the primary source. I read SCOTUSblog. Loretta Lynn was indeed mentioned, but the post is not particularly decisive.
but I don’t know if her nomination will require her to give up her position. I think she could serve as AG with the understanding that she’ll continue as AG until confirmed.
Given that Republicans will not even grant hearings or take any action whatsoever, waiting around watching Republicans grandstand won’t be a big imposition on her many duties as AG.
is going to energize too many Democratic voters. SCOTUS is primarily inside baseball. People of color are going to turn out in 2016 because a racist is likely to be nominated by the GOP, and turn out for these elections are typically high. Loretta Lynch getting rejected by the Senate is not going to change turnout.
I think much of the disappointment with Obama is the fact that he turned out to be a centrist, which is not what all his enthusiasts believed when he ran in 2008.
There may be a number of ways to capitalize on the SCOTUS vacancy, but I still see Srinivasan as the most effective way to capitalize politically. Again, his jurisprudence is still somewhat a question mark, but if he turns out to be worthy of appointment, he’s the best nominee politically.
…to those whose health care was on the line in the ACA decisions, to those whose voting rights are now less protected, to those who can now marry any person they love, etc., etc.
is that she’s one of the few ways to potential energize the base with the appointment. I agree that the SCOTUS issue has been more of a motivator for Republicans than for Democrats in recent years. But nominating a high-profile individual that many people know of, or at least recognize, might have a higher chance of getting the issue sustained attention among Democrats than somebody obscure (like Srinivasan or indeed just about any lower-court judge).
This guy sounds fine. Great! Put him on.
But, no offense to anyone here, the notion that we have to have a strategy on this is really a bummer.
Surely we have no shortage of qualified candidates for the highest court in the land? Scalia himself was confirmed 98-0. John Roberts was confirmed with the support of Russ Feingold among others.
Laurence Tribe, we’ve been told for years, “can’t be confirmed.” We heard this when WE had the Senate. WTF?
Someone’s going to reply to me saying “We’re reality based, and this is the reality.” NO — this is politics.
The President should pick the most qualified person available, someone neither party can seriously oppose. Without actually saying it — maybe he could call it “The Roberts model” to appease them — the President’s message should be “Let’s get serious here and close this unfortunate partisan chapter in the history of the Court. We want the best jursits and legal thinkers. I am pleased to nominate … “
on yours and SomervilleTom’s part. Scalia was nominated by Reagan. Politically, that was eons ago. Things have changed since then. The GOP isn’t appeasable.
“We” (as in BMGers) don’t have a strategy at all. That there always is–Harriet Myers, excepted–a strategy is called politics. We can pretend that it’s only ideology and doing what we think is the “right” thing that matters, but the fact is, the right thing doesn’t happen without strategy.
And again, I’m spelling out what I think are the politics, not endorsing Srinivasan.
We don’t need a strategy because we’re not trying to get anything.
We’re trying to fill a vacancy on the Supreme Court of the United States of America.
Again, there are dozens, maybe hundreds of people who meet the qualifications and cannot be seriously opposed by either side. The President should pick one of them, McConnell should move him/her through as swiftly as possible. There’s still some stuff we’re not supposed to fight over. That’s my point.
… how self-defeating this is. We always complain about politicians compromising too soon. This is worse than compromise, it’s complete surrender to a lose-lose game of partisanship. We may not have started this — most people blame Nixon. But we can certainly try to end it, and why not a twice-elected still pretty popular Democratic president with a background in Constitutional law?
because we are trying to get a desirable justice appointed.
Should? Children shouldn’t go to be hungry. Police shouldn’t shoot unarmed black men. Corporations and billionaires shouldn’t be able to buy elections. The Democratic Party shouldn’t have had to pay the price it did for Civil Rights legislation. It’s important to keep “should” in mind, the should’s are our goals. Life’s a bummer if you compare it to what it should be.
I agree we should be able to have a reasonable nomination process, that Presidents should nominate reasonable candidates, and that the Senate should “advise and consent” in a reasonable manner. While Democrats have played by these rules (Robert Bork was not a reasonable nominee), in the last 30 years, the Republicans have not, do not, and will not. That’s a bummer. Being able to strategize about it, having an acceptable nominee, and the chance to change the SCOTUS for the better for the next 30 years, that’s a cause for hope.
Maybe I’m not following you Jim (the general reference problem in your second comment makes you unclear), but this is how the sausage gets made. First of all, Srinivasan is probably a great candidate (I’m not that deep in the weeds of jurisprudence). Mother Jones had questions when he was appointed to the court of appeals in 2013, but no actual criticism. It’s a zero sum game due to the GOP. They have shown time and again that they are willing to blow up the government to get their way. They have shown no remorse or regret trying to shut down the government. In our time, there is only partisanship. You can’t have rabid partisanship on one side and really, really nice people on the other. The really, really nice people lose. They may feel purer, they may feel justice wasn’t served, but they lose. When they lose–when we lose–people suffer.
But I say it’s because the stakes are so high that we need to remove partisanship from this. Yes, we want a “desirable nominee,” but there shouldn’t be any shortage of perfectly desirable nominees.
The problem with Scalia was not his ideology per se, it was when he let his ideology override his legal principles. I read the other day that RBG was able to quote him extensively in her opinion upholding Obamacare.
We can’t control what the Republicans do. But I’m not talking about making sausage. I’m talking about a lifetime appointment to the Supreme Court. When we talk about nominees who are “hard to vote against,” it should be because of their legal reputation and work, not their demographics or party affiliation.
partisanship from the appointment process? We’re operating in the real world here. There’s no easy button. No pixie dust.
You suggest that it’s really, really important to remove partisanship. How can that be done when one of the two parties cares more about partisanship than governance? Seriously, how is that supposed happen? I’m talking real world, not the Land of Should.
Which Sabutai also endorsed. Get a young jurist who could be a liberal Scalia to replace RBG while putting up a young (though shoot for a socially moderate) conservative to replace Scalia. It ensures both sides can maximize their advantage from these vacancies while Obama is still in office while helping us move away from partisan confirmation battles.
Put a Kamala Harris on the court in exchange for nominating a Brian Sandoval or a young Frank Easterbrook style conservative.
…trying to talk RBG into retirement. I also think plenty of progressives prefer Harris continue her campaign for the Senate.
Not happening.
First, it’s incredibly disrespectful to RBG. She could have retired at any point in the administration, and has chosen not to. Now you’re talking like she’ll suddenly choose to? It makes no sense, and (literally) no one can make her step down.
Most importantly, elections have consequences, and America has elected Democratic Presidents for 16 of the past 24 years. America understood the ramifications that likely meant for the courts, as they made those votes.
Mark, you’re not even trying to listen to me.
Look at my first comment upthread. It was said that Laurence Tribe “could not be confirmed” and therefore could not be nominated by 350-electoral vote winner Barack Hussein Obama, while our party controlled the Senate AND the House to boot. That was not about Tribe per se, it was about any legal scholar considered liberal. That is madness and Republican spin. I refuse to live like this.
Stop telling me I’m talking about a fantasy world. I’m trying to tell you that you don’t have to accept living in an irrational world just because Mitch McConnell wants you to.
Obama is still President and can nominate whoever he wants. If that person is qualified, and there is no shortage of people who are (as far as I know), then there is no reason for McConnell to prevent it. He can try to stop the nominee, of course, but I have (some) faith that our system writ large (we Democrats, the press, even some fellow Republicans) will make him do the right thing. Let’s not surrender at the outset by catering to Mitch.
you. I’ve been trying not to think that you reject the reality of politics. The problem is, that’s what I’m reading suggests that you do reject the reality of politics. Every time you argue for your side, you say something like,
I ask how and you say, you offer an abstraction that allows you to ignore reality like this:
The nominee is hugely consequential to the GOP. Are there enough senators to block a filibuster? No. Are there 51 to support a nominee? If so, which senators would join the Democratic minority to support a nominee?
I’m asking for specifics and you’re offering me your “faith”?
Sometimes you have to say heck with reality – we’re going to propose what we really want anyway, at least to start. A common critique of Obama is that he prenegotiates too much.
I think Senate Democrats have between now and November to hammer home — over and over again — that the Presidential nomination is not even being considered.
Suppose Mr. Obama nominates Ms. Lynch. I think that each highly-publicized round of obstruction to her confirmation costs the GOP more minority votes, especially in swing states and in blue states with a GOP senator (like NH). I think that a GOP vote to reject Ms. Lynch costs even more votes.
I think each round of obstruction forces the GOP primary candidates even further rightward, while both Democratic candidates rightly remind voters that (1) each of them supports the nominee, and (2) each of them feels strongly that the nomination should proceed.
While the GOP candidates go further and further out on the obstruction limb, the Democratic campaigns and the entire Democratic media operation home the message that “the Republicans are destroying our government”.
I think the advantage is ours, and I think we should press it.
We might lose the fight to nominate Ms. Lynch. I think the result of that loss will be that we’ll win the general, win the Senate, and seat three liberal justices.
I’ll take that outcome.
with everything you say here, but with Srinivasan. You’re not the only one talking about Lynch, and for the same reason, so she may be the one. Somehow, I don’t think so, but what do I know?
GOP obstruction is mountain they party dies on.
if my party even knows how to do that any more.
Nominate someone qualified.
If they filibuster, withdraw that nomination.
Nominate someone else.
Repeat as necessary until the vacancy is filled.
Or if you prefer, limit it to three. If they filibuster all three, renominate the first person.
NO COMPROMISES, NO CAPITULATION. Exercise the power we have. FORCE THE ISSUE AND MAKE THEM BACK DOWN.
Is that specific enough for you?
No Capitulation? Withdrawing a nominee? Withdrawing the next one? Withdrawing the next one?
No compromise? How about this nominee? Okay, how about this one? Okay, how about this one?
How is this NOT politics?
I really don’t know what you’re trying to get me to say. Can we “remove politics” from a process run by politicians? Probably not.
Can we make the point that this process should be, to coin a phrase, above the fray? YES. And there are many ways to do that.
n/t
The problem with this is that partisanship has ALWAYS been part of the nomination process. Consider the classic example of President John Adams and his “midnight appointees” that Jefferson and his allies assailed. This included Chief Justice John Marshall, who saw the judiciary as a bulwark against the wild-eyed radicals like Jefferson and his ilk. It was only shortly after that the Jeffersonians tried to impeach Federalist judges and justices and replace them with ideologically friendly judges.
This was partisanship involving the judiciary even before there were official parties in the US!
Look what happened to John Rutledge of South Carolina. I think Scalia would expect to be replaced as soon as possible, or at least have the process start. What if another of the current justices dies shortly, or a couple of them?
…would publicly tell everyone to get their acts together. Chief Justice Rehnquist spoke publicly multiple times about the need to keep the judiciary fully staffed.
… It smacks of scheming.
Without speaking for Jimc, I’ll say that the depressing (that is to say “bummer”) part, for me, is the attempt at machination: the notion that since, yes, the GOP is unappeasable we can still get what we want by out-foxing them. This is just a mustache twirl away from caricature of politics.
Instead of treating the obstructive nature of the present GOP as just another political hurdle to be circumvented by way of tactics, scheming and ledgerdemine, why can’t we just do what we know is right and, when that doesn’t work, simply say ‘politics is broken and those guys over there broke it.”
Why can’t we do that?
but rather our representatives. I don’t mean to pick nits, but just be clear. I feel like what I’m saying and what is being done in Washington are being conflated. I’m pretty sure that what I’ve spelled out is what happens in the White House everyday. It’s just not made public.
We can do what you suggest. The only question is the result. Will it make things better or worse for the country and the party? The gist of my post is an action that forces people to realize “politics is broken and those guys over there broke it.”
I didn’t say that Srinivasan was the right or wrong pick, just spelled out what I see as the politics. Subsequent research on my part suggests that he is a ideologically right as any of the other picks.
ideologically correct, not “right.”
for refusing to do their jobs. We’ve all been watching Obama for many years now, and I think that he’ll probably put politics aside, follow his established process for picking Supreme Court nominees, and choose someone who fits his judicial philosophy. Obviously, when the time comes, Obama will have to deal with the nomination process which is always imbued with politics, but my guess is that takes a back seat to choosing the person who Obama believes is the best jurist in line with his philosophy. Nomination politics can highly unpredictable; therefore, better to leave politics out of the selection, and let the political chips fall where they may.
…that your first sentence will prove correct. There are LOTS of things the GOP has done during the Obama presidency that should have finished them as a serious party for a generation, but alas, they do have majorities in both chambers of Congress.
Maybe it’s just wishful thinking on my part. I just think Washington’s lack of action/blocking on so many important issues has contributed to R’s in Congress having pitiful approval numbers (not that D’s in Congress are much better), and that blocking the nomination of a Supreme Court justice will contribute to the public’s frustration.
Our supermajorities don’t do anything in the few states where we have full bicameral control, theirs go nuts like in Kansas on policy or gerrymander the hell out of a blue presidential state like in Virginia, Wisconsin, Pennsylvania or Michigan. In the case of that last state it took just four years for them to enact sweeping legislation killing unions in their cradle and privatizing the water supply while ours hasn’t done anything nearly so radical in over 60 years.
…but they’ve behaved so badly that I would have liked 90% of Americans to be in open revolt against the party, such that it wouldn’t matter how advantageously they gerrymandered. There is just no excuse for their refusal to do their jobs in good faith and even conservative voters should punish that in a perfect world.