Sri Srinivasan strode confidently into a Senate room on Wednesday for his confirmation hearing as a judge on the U.S. Court of Appeals for the D.C. Circuit. He elicited chuckles from Senate Judiciary Committee Chairman Senator Patrick Leahy (D-Vt.) during pre-hearing chit-chat. His bipartisan supporters in the room included the two Virginia senators who introduced him, five congressmen and Solicitor General Donald Verrilli Jr.
But before Srinivasan even got a chance to speak, the hearing devolved into partisan arguments about the speed of judicial nominations in general. Senator Chuck Grassley (R-Iowa), the top Republican on the committee, used his opening statement to announce a bill that would reduce the number of judges on the D.C. Circuit from 11 to 8.
Grassley announced he would file the legislation, cosponsored by other Republicans on the judiciary committee like Senators Mike Lee (R-Utah), Orrin Hatch (R-Utah), Jeff Sessions (R-Ala.), Jeff Flake (R-Ariz.) and Ted Cruz (R-Texas). The bill would essentially transfer those judge positions to the U.S. Court of Appeal for the Second Circuit and the Eleventh Circuit, which Grassley contends have higher caseloads per judge.
The move underscored how, despite Srinivasan’s broad support and excellent legal pedigree, his nomination to the second most important court in the United States will have to navigate one of the most gridlocked parts of a gridlocked Senate. The D.C. Circuit has four vacancies. Srinivasan, the principal deputy solicitor general in the U.S. Justice Department, is the only pending nominee for any of the open slots.
Senator Sheldon Whitehouse (D-R.I.) used his questions to sum it up this way: His concern was not about Srinivasan’s qualifications but "how we as a Senate are going to treat judges." He then spoke about how Republican’s block of Obama’s last D.C. Circuit nominee, Caitlin Halligan, broke an agreement about how the Senate would proceed on nominations. (Halligan in March withdrew her nomination to the appeals court.)
"I have no questions for the wonderful candidate," Whitehouse said about Srinivasan.
Even more to the point, Grassley’s first questions to Srinivasan during the confirmation hearing were about a settlement between the federal government and St. Paul, Minn., in a Fair Housing Act case. Republicans have used the case to justify a delay in holding Srinivasan’s confirmation hearing for months.
Grassley and Hatch asked about the positions Srinivasan took during last month’s arguments on the Defense of Marriage Act and rulings by the U.S. Supreme Court. The questions, Senator Chris Coons (D-Del.) said, evoked a broader question of whether the Senate will confuse a lawyer’s arguments on behalf of a client with his or her personal beliefs.
At one point, Senator Al Franken (D-Minn.) left the hearing in frustration after a conflict with Hatch about asking questions. Hatch apologized to Srinivasan, saying "I’m sorry that happened."
Srinivasan said: "I think part of having a judicial temperament is knowing when not to talk, and I think this is one of those occasions."
Otherwise, Srinivasan deftly fielded questions about his views on textualism when making rulings (decisions should start and end with a law, he said); whether international rulings are not precedential; and when he would overrule a precedent of the D.C. Circuit (there has to be a healthy respect for precedents, he said).
Hatch at one point asked Srinivasan how he would shift from being an advocate to judge. "An advocate is duty-bound to be partial. I think things shift radically when you become a judge," Srinivasan said. "At that point, the duty is impartiality. If confirmed, I would have an impartial adherence to the rule of law."
Near the end, Srinivasan appeared to enjoy the support of several Republicans on the committee. Cruz, who has showed he is willing to block bills and nominations he does not approve of, said that he and Srinivasan clerked together and have been friends for a long time.
"I will hope our friendship will not be seen as a strike against you," Cruz said.
Hatch said it this way: "I’m really impressed by you. I think you’re terrific. Right now, some of these things bother me but I want to support you."
The judiciary committee must approve Srinivasan before the full Senate can vote on his confirmation.
President Barack Obama is personally involved in the White House push to get Srinivasan onto the D.C. Circuit, an 11-judge court that’s often considered a stepping stone to the Supreme Court. Obama discussed Srinivasan in closed-door meetings with both Republican and Democrat senators, a White House official said.
Srinivasan has argued 24 cases before the Supreme Court, has worked in the solicitor general’s office under both Republican and Democrat administrations, and clerked for two Reagan-appointed federal appellate judges, including former Supreme Court Justice Sandra Day O’Connor.
A native of India, he grew up in what he described as the "basketball-crazy" town of Lawrence, Kansas. His parents worked at the University of Kansas and he belonged to one of two Indian families in town.
Srinivasan was an appellate partner at O’Melveny & Myers from 2007 to 2011, when he joined the Solicitor General’s Office. Srinivasan served as chairman of veny’s Supreme Court and appellate litigation practice.
Contact Todd Ruger at email@example.com.