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.
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.
"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.
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.