There is little doubt among appellate lawyers that Sri Srinivasan would make a great judge. The nominee for the U.S. Court of Appeals for the D.C. Circuit is smart, they say, and has an engaging personality and easy style that has endeared him to his peers and U.S. Supreme Court justices alike.
"Sri has a special touch with everyone in every building he’s ever been in, no matter what their position," said Walter Dellinger, an appellate partner in O’Melveny & Myers’ Washington office and a former colleague of Srinivasan.
But this week, Srinivasan will find himself on Capitol Hill in the political crossfire over D.C. Circuit nominees that stretches back for more than a decade. The Senate Judiciary Committee takes up Srinivasan’s nomination on April 10.
Srinivasan, the principal deputy solicitor general in the U.S. Justice Department, will face plenty of opposition in a process that already tripped up the Obama administration’s first nomination for the appeals court.
Senate Republicans have already held up Srinivasan’s nomination for months as part of a broader effort to force the Justice Department to turn over documents about a settlement between the federal government and St. Paul, Minn., in a housing case. Republicans are likely to press Srinivasan about his views on affirmative action and voter identification laws, said Curt Levey, president of the conservative Committee For Justice.
"Those are hot buttons he won’t be able to escape," Levey said. "He doesn’t have one thing on its own that could stop him yet, and may never, but there’s going to be an accumulation."
Even then, Levey said, Srinivasan will face "higher levels of scrutiny" applied to D.C. Circuit nominees stemming from the high bar Democrats set during the George W. Bush administration. Republicans blocked Caitlin Halligan’s nomination to the appeals court last month, justifying the move in part by bringing up how Democrats from 2001 to 2003 thwarted one of Bush’s D.C. Circuit nominees, Miguel Estrada, co-chairman of Gibson, Dunn & Crutcher’s appellate and constitutional law practice.
President Barack Obama is personally involved in the White House push to get Srinivasan onto the D.C. Circuit, an 11-judge court that has four vacancies. Obama raised the issue during recent closed-door meetings with both Republican and Democrat senators, a White House official said.
What happens in the Senate could say more about the state of judicial confirmation politics than the qualifications of Srinivasan. He 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, Srinivasan 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.
"There is no controversy over the fact he has life experience that makes him perfectly suited to sitting on the D.C. Circuit," said Caroline Fredrickson, president of the liberal American Constitution Society. "He also shows he is very much about being an excellent lawyer with intellectual capabilities and not in any ideological camp."
Srinivasan was an appellate partner at O’Melveny from 2007 to 2011, when he joined the Solicitor General’s Office. Srinivasan served as chairman of O’Mel­veny’s Supreme Court and appellate litigation practice.
In legal circles, those who have watched Srinivasan argue before the Supreme Court expect a stellar performance before the judiciary committee. Before the high court, Srinivasan has an easy, matter-of-fact manner coupled with a command of the facts, even without notes in front of him. Without bluster or flowery rhetoric, he lays out his view of the case in clear and respectful terms.
"I think people will find that Sri is disarmingly open-minded in response to questions," Dellinger said. "He never gives off the impression he is aware of how smart he is."
During his 2009 argument in Hertz Corp. v. Friend, Justice Sonia Sotomayor asked an important hypothetical question, but other justices quickly jumped in to make other points. Chief Justice John Roberts Jr. finally interjected to ask, "Were you finished with your answer to Justice Sotomayor’s hypothetical?" Srinivasan’s quick reply: "I don’t know that I, in fact, started the answer, Mr. Chief Justice — with respect." Srinivasan, then with O’Melveny, won the case.
Within the legal community, at least, Srinivasan enjoys support on both sides of the political aisle. Twelve former solicitors general and deputy solicitors general sent a letter this month to Senate judiciary leaders, urging their support for Srinivasan as a nominee with "a first-rate intellect, an open-minded approach to the law, a strong work ethic, and an unimpeachable character."
Former solicitors general Theodore Olson of Gibson, Paul Clement of Bancroft, Seth Waxman of Wilmer Cutler Pickering Hale and Dorr and Gregory Garre of Latham & Watkins were among the signatories.
"While in the Solicitor General’s office, Sri quickly grasped the nuances of a wide array of legal issues, drafted finely written briefs, and clearly articulated the position of the United States," the letter said. "He is extremely well prepared to take on the intellectual rigors of serving as a judge on the D.C. Circuit."
In published articles, Srinivasan has confronted a range of topics that include an analysis of the Roberts Court’s decisions about business interests and the propriety of state voter ID laws. The Justice Department’s challenge to Repub­lican-led state voter ID initiatives drew criticism from some Republicans on Capitol Hill.
Srinivasan and Dellinger, writing in Slate in 2008, put a spotlight on the Supreme Court’s review of an Indiana law that required voters to show an identification card at the polls.
"A law said to combat voting fraud by imposing the modest task of showing an ID may seem at first impression to be both sensible and fair. But this law is neither," Srinivasan and Dellinger wrote. "First and foremost, Indiana’s law is a ‘solution’ to a problem that doesn’t exist." That summer, the high court in a 6-3 ruling upheld the constitutionality of the state law.
IS HE EVEN NEEDED?
Beyond featuring politically and legally divisive issues, the hearing this week will renew debate over whether the D.C. Circuit even needs another judge. In the fight against Halligan, Republicans said the court’s declining case load did not justify another judge. The judiciary chairman, Senator Patrick Leahy (D-Vt.), countered that caseload per active judge — discounting the work of senior judges, who still sit on hearing panels and still write opinions — has gone up since 2005.
"[T]he bench is more than one-third empty," Leahy said in March. "This is reason enough for senators to reconsider their previous vote and end this filibuster" of Halligan.
Senator Chuck Grassley (R-Iowa), the ranking committee member and a leading critic of Halligan’s nomination, said only, "I look forward to hearing from Mr. Srinivasan when he comes before the Judiciary Committee and plan to have several questions for him.
"This would include questions to gauge his judicial temperament, his approach to the Constitution and his thoughts on the proper role of a judge in our system of checks and balances," Grassley said.
Todd Ruger can be contacted at firstname.lastname@example.org. Tony Mauro and Mike Scarcella contributed to this report.