Supreme Court

4 Things to Know About Sri Srinivasan, Obama's Potential Nominee to Replace Scalia on the Supreme Court

Examining the record of a possible SCOTUS nominee.

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President Barack Obama is expected soon to announce his nominee to replace the late Justice Antonin Scalia on the U.S. Supreme Court. According to multiple reports, Obama is deciding among a shortlist of five candidates. Among those five, one in particular has struck many court watchers as a potential frontrunner. That candidate is Sri Srinivasan, who currently sits as a judge on the U.S. Court of Appeals for the District of Columbia Circuit.

Srinivasan has certainly got the right sort of resume for the job. He was confirmed to the D.C. Circuit by a Senate vote of 97-0, had a successful private legal practice, and served multiple stints in the office of solicitor general, including a period as principal deputy solicitor general for the Obama administration. He clerked for Judge J. Harvie Wilkinson on the U.S. Court of Appeals for the 4th Circuit and for Justice Sandra Day O'Connor on the Supreme Court, both Republican appointees. If he's actually confirmed Srinivasan would also make history as both the first Asian American and the first Indian American to sit on the high court.

We don't yet know whose name Obama will put forward. But for the sake of argument, let's assume Srinivasan is going to be the nominee. Where does he stand on the issues? What do we need to know about his legal philosophy? Here are four areas of the law where Srinivasan's legal record is likely to come under scrutiny.

Religious Liberty

In 2012 Srinivasan served as counsel of record for private respondent Cheryl Perich in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. Srinivasan and the EEOC both took the position that the "ministerial exception" to federal anti-discrimination law should not shield a parochial school from a disability lawsuit filed by a discharged teacher (Perich). According to the school, on the other hand, its internal personnel decisions are protected by the First Amendment and its requirement that Congress make no law "prohibiting the free exercise" of religion.

The Supreme Court ruled 9-0 against Srinivasan's client and against the EEOC. "By imposing an unwanted minister," Chief Justice John Roberts wrote, "the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments."

With disputes over the scope of religious liberty increasingly appearing on the federal docket, this case is likely to figure prominently in any discussion of Srinivasan's record.

Corporate Litigation

"It's understandable that liberals might look skeptically at Srinivasan." So wrote the progressive magazine Mother Jones in 2013. Why? Because when Srinivasan was a lawyer working in private practice, Mother Jones observed, he "defended corporate clients against unions and plaintiffs alleging human rights abuses." Not exactly the sort of ringing endorsement that's going to win big cheers at a Bernie Sanders rally.

There is one case in particular that's likely to disconcert Srinivasan's potential progressive supporters. That case is Skilling v. United States, in which Srinivasan represented former Enron chief Jeffrey Skilling, who claimed that he did not receive a fair trial when he was convicted of fraud. Srinivasan lost that case in a 9-0 decision written by liberal Justice Ruth Bader Ginsburg.

Gay Marriage

In June 2013 the Supreme Court ruled 5-4 in United States v. Windsor that the federal government violated the Constitution when it refused to recognize same-sex marriages that had been legally recognized by state governments. Section 3 of the 1996 Defense of Marriage Act, Justice Anthony Kennedy wrote, "violates basic due process and equal protection principles." That part of DOMA was struck down.

The Obama administration ultimately sided with Edith Windsor in that case. In the March 2013 oral arguments, a key part of the administration's case against DOMA was argued before the Court by Srinivasan, who was then serving as principal deputy solicitor general.

For those conservatives who still consider gay marriage to be a fighting issue, Srinivasan's role in DOMA's demise may be a factor in a SCOTUS confirmation fight. (That is of course assuming the Senate ends up holding hearings in the first place, something that Senate Republicans are vowing not to do.)

Unreasonable Searches and Seizures

The Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Yet that textual command did not stop the Obama administration from arguing that law enforcement officials should be allowed to attach a GPS tracking device to a car without first obtaining a warrant. "If you win this case," Justice Stephen Breyer said to Deputy Solicitor General Michael Dreeben during the November 2011 oral argument in United States v. Jones, "there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States."

In the end, the Supreme Court rejected the Obama administration's position 9-0. "It is important to be clear about what occurred in this case," declared Justice Antonin Scalia. "The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted."

Civil libertarians can take heart on this one. Sri Srinivasan was part of the winning legal team that represented Antoine Jones and thereby helped secure this important Fourth Amendment victory.

Editor's Note: This article originally misidentified the private respondent in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission.

NEXT: President Obama Wants a Back Door on Your Phone. But Not on His.

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  2. Don’t see anything here about the Second Amendment.

    “Srinivasan and the EEOC both took the position that the “ministerial exception” to federal anti-discrimination law should not shield a parochial school from a disability lawsuit filed by a discharged teacher (Peach).”

    Did Srinivasan take this as a pro-bono case?

    I don’t know whether this reflects his personal opinion, or if he was just representing a client–but if that’s his personal position, I’d rather see who Trump appoints.

    1. I don’t know whether this reflects his personal opinion, or if he was just representing a client

      You could say that about everything this guy (or any solicitor) has argued.

      Which is why its often preferred if a candidate has some record in law-review or academia, where they’ve published some legal scholarship establishing their own particular line of reasoning on a range of core legal principles.

      its why people laughed at Bush’s proposal of someone like Harriet Myers. zero track record as anything but a gofer and a hack. which is what 90%+ of lawyers are, regardless of how talented they might be.

      1. I thought law review articles were just about impressing people, “Who but a lawyer could figure that way?”

        1. just about impressing people,

          “And for my next trick, i will show how forcing citizens to keep firearms disassembled & locked in a safe buried in their basement separate from any ammunition, which is itself stored in limited quantities in a building at least 1 mile distant, is in no way an infringement upon Second Amendment ‘rights’.”

          1. It still amazes me how much people think stuff like this is a “perfectly reasonable” gun control measure.

    2. Don’t see anything here about the Second Amendment

      Fucking this. But we get 3 paragraphs on a 9-0 ruling on the 4th. The elephant is still in the room Damon

      1. He may just not have much of a record on that issue.

        1. Wouldn’t he have been on the DC Circuit when it heard McDonald?

          1. I mean Heller. Looking it up.

            1. Not every judge on the Circuit hears the case. They are usually just 3-judge panels, unless the case is en banc, which I don’t think Heller was.

              1. He wasn’t there then. And they refused to hear it en banc by a 6-4 tally anyway.

        2. No record on guns is probably as bad as having an anti-gun record. After Kagan and Sotomayor lied through their fangs about supporting the 2nd Amendment, we need someone with a proven and consistent track record of supporting the individual right to keep and bear arms.

          1. The 2A is the only one that matters at this point. The rest will be a fairly mixed bag of good and bad from every judge. It’s the 2A that is polarizing, and blocking the 2A is what will lead to civil unrest. None of the others have that capability.

            1. Ding ding ding

      2. I’m just going to take it on faith that anyone Obama nominates is a complete leftist shitbag.

        1. You’re probably on sound footing here!

    3. “Cheryl Perich filed a lawsuit against the Hosanna-Tabor Evangelical Lutheran Church and School in Redford, Mich., for allegedly violating the Americans with Disabilities Act when they fired her after she became sick in 2004. After several months on disability, Perich was diagnosed and treated for narcolepsy and was able to return to work without restrictions. But she said the school at that point urged her to resign and, when she refused, fired her.”

      Thou shalt not employ a narcoleptic?

      https://www.oyez.org/cases/2011/10-553

      1. You know who else bombed as a narcoleptic?

  3. . If he’s actually confirmed Srinivasan would also make history as both the first Asian-American and the first Indian-American to sit on the high court.

    Ugh. a total slap in the face of all the transgender eskimo jurists.

    1. I think Mr. Root was referring to the thinking that would make Obama want to appoint him.

      If there were any transgender Eskimos on the DC Court, I’m sure they’d be in the running.

      . . . as long as they’re okay with killing babies, and there’s somethin’ else weird about them, Obama’s on board.

      1. If there were any transgender Eskimos on the DC Court, I’m sure they’d be in the running.

        Ugh, using historical discrimination as justification for continued marginalization. Disgusting.

      2. Well of course, nothing is ,ore important to the progtarded than taxpayer funded, institutionalized mass infanticide.

    2. I like that phrasing. Like he wrote “the first mammal and first dog to hold elected office”

      The second one is a bit redundant.

  4. Um gun rights or GTFO

  5. So, often terrible and occasionally OK. Par for the course I guess.

    1. Arguing that churches can’t discriminate against people in hiring who don’t share their beliefs is like one step away from suggesting that they can’t refuse to perform gay weddings.

      Maybe less than a whole step away.

  6. First thing to know about an Obamanomanee is Obama’s nominating him and if he gets on the Court it’ll be because the Senate confirms him – that’s two strikes right there. Iffen the gummits fer ’em, ah’m agin ’em.

    1. I am worried about what happens if the Republicans lose both the White House and the Senate.

      We may wish the Republicans had just gone ahead and confirmed Injun Joe.

      1. Right… that’s the big roll of the dice everyone is worried about, and Obama knows it.

        We can take a relative moderate now, and feel better about it if Clinton gets into the White House. Or we can block it and possibly open ourselves up for someone completely off the deep end in the event of a big Democrat win in November.

        But the way I see it, this won’t be the only SCOTUS appointment of the next administration. There will likely be at least two more, so if Clinton wins she’s going to get to tip the balance of the court anyway, making it moot whether she gets to fill this particular vacancy or not.

        Probably better for the Republicans to keep this alive as a campaign issue and work towards a win. Because if they lose, they’re going to lose big anyway.

        1. That makes a lot of sense.

          1. which is why the GOP won’t play even if they get a decent nominee.

            1. I thought the preferable strategy was to have the hearing and then reject until I heard someone pointed out that the nomination process will become a daily media story for several weeks.

              1. pointing*

              2. Can’t they have hearings and postpone the vote until after the election? That way they keep options open.

    2. “Obamanomanee” is a fantastic word, and an even better template. I like the thought of a particularly moralistic sermonizing speech from POTUS being an Obamahomily, or the liberally biased budget reports justifying the expense of a manned Mars mission Obamastronomy. And of course, what he’s done to the country during his tenure in office…Obamasodomy.

      1. I see you took my course on Dialectical Obozoism, I am a subsidized (otherwise unemployable) college professor.

  7. “make history as both the first Asian-American and the first Indian-American to sit on the high court.”

    And in the Age of NPR, that’s all that matters.

    1. i imagine Obama’s reaction when flipping through the resumes of potential candidates was like this

      1. So Asians do score you AA points? It’s totally the opposite in university admissions.

        1. The game w/ positions of authority in government is all about “Firsts”.

          as in, “make history as the first Asian-American…. to sit on the court

          History, man. History really gives a shit whether its the first Asian, instead of the 3rd black guy, or the 5th woman, or the 12th closeted gay one.

          As already noted, i personally consider any appointment not involving a severely disabled (and/or transgendered) Native-American, (preferably a blind, gender-queer Apache dwarf) an insult to all marginalized peoples everywhere.

          1. I’d like to see the “First Libertarian President,” but we all know the gov’t isn’t going to let that happen without staging a coup.

            1. “Libertarian” is not an ethnicity or sexual-orientation, which are far more important aspects of the makeup of a judicial body.

              1. Because gender is now a social construct, I propose Libertariangendered. That oughta do it.

          2. I was pretty amused when Madison hired a lesbian Amerindian for fire chief. They had to go all the way to Arizona to find one of those.

          3. Of course, Obama could really go rogue and. Nominate an old white man……….

            Nah, it will never happen.

  8. The one thing I need to know about the guy is that Obama wants to nominate him, so…NO.

    1. so…NO.

      I think the correct answer is, “I’m going to need 8 months to think about this”

      1. Not sure Trump would be any better than Hillary. Only hope appears to be Cruz and that’s not probable at this point.

        1. Not while Rubio keeps acting like a whining toddler who needs to go to bed and is throwing a tantrum about it.

    2. This. You can be assured that if Obama wants him, I don’t.

  9. FYI, Damon, The Hill says Obama’s shortlist is down to three.

    Srivinasan (damn that’s going to be difficult if he gets appointed a SCOTUS justice), Garland, and Watford are the remaining guys.

    1. The Kansas native has strong ties to Republicans. He is friends with Sen. Ted Cruz (Texas), a 2016 presidential candidate, dating back to their time clerking on the 4th Circuit Court of Appeals.

      So I assume that Cruz knows better than most how Sri really feels about important issues.

  10. What am I supposed to think about a lawyer who gets smacked down 9-0?

    Either none of these cases reveal anything about him as other than a hired gun. Or he isn’t very talented if he volunteered to work on them.

    No guns. No abortions. Nothing that the Senate actually cares about.

  11. “If he’s actually confirmed Srinivasan would also make history as both the first Asian-American and the first Indian-American to sit on the high court.”

    Eh, they’ve only been counted as “Asian” since the Reagan administration.

    1. His family moved to Kansas when he was a baby so he’s just an American. Adding the hyphen would be cultural appropriation.

      1. He started as a “Caucasian” and got switched to “Asian”. He’d be the first Trans justice too.

  12. So the guy is a bit of a blank slate. I get the general sense that he would be less liberal than Obama’s other nominees; but either way I don’t know that we can really risk blank slates right now, with four already on the bench that would probably declare the Bill of Rights unconstitutional if they could.

  13. Yeah, these cases really don’t tell me anything. Now if he would have been representing the pigs on the GPS case that would have told me something about him, but three of those were just representing clients which is his job. The Gay Marriage one was really just government infighting.

  14. All this talk about oral arguments. What about the anal arguments? How come we never hear about them?

    1. I heard enough about them from my girlfriend on my last birthday. I lost in a unanimous 1-0 decision

    2. Those usually come up in prison, or in a bath house.

    3. What do you mean “no anal arguments”? From which end do you think most of these judges’ arguments come?

  15. I’m angling for a white anglo-saxo protestant, because we don’t have any of those on the court.

  16. 50 comments and not one reference to Apu.

    I’m impressed.

    1. Vishnu?

      Nothing. Vishnu with you?

  17. “If he’s actually confirmed Srinivasan would also make history as both the first Asian-American and the first Indian-American to sit on the high court.”
    That’ll do it. At this point the Obama administration’s approach to appointees is the mirror image of the youtube commenter who desperately tries to be the first to comment on every video. “First!!! Yes, another First! What do I win?”

  18. I don’t give a shit if he’s a green Martian.

    1. Obama does. Nothing is more important to him than who you fuck, the color of your skin, and your faith.

  19. This guy, like Roberts, has no paper trail that might give a clue as to his basic judicial philosophy. We knew nothing about Roberts until his confirmation hearings where he pledged his undying loyalty to “judicial restraint” by denouncing, in no uncertain terms, the famous “Loughner” decision. That decision acknowledged the existence of an economic right, the right of individuals to engage in contracts of their own choosing and consequently denied the state of New York the power to control the terms of those contracts.

    Roberts refused to overturn a law, ObamaCare, involving the violation of economic rights just as he had promised he would. Damon Root was the only one that I know of to see the possibility that Roberts would do this.

    Obama, being among the most secretive and deceptive liars to ever occupy the White House, would be more than likely to send a “stealth candidate” for confirmation just as his secretive, deceptive predecessor did.

    1. This seems quite likely. Obama wouldn’t appoint someone without knowing exactly where they stood. This guy, like any other prospective appointee, has probably spend much of his career around well-connected people who know all about him and can confidently whisper in the president’s ear that he’d ‘one of us’, despite having know publication or decision record.

      This makes it much more politically troublesome for Republicans to oppose him. They have nothing on paper to justify their opposition, even though they would be justifiable in assuming they would strongly object to him if they knew where he stood. He’s a faux black box, one which the media will portray as a non-controversial nominee, a good compromise, when in truth, a good compromise would be if Obama nominated someone with a proven track record of being middle of the road, someone we knew would be a Kennedy-type. But this Sri seems more like a close friend pretending to be a stranger.

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