By Greg Stohr and Mike Dorning
March 15, 2016
President Barack Obama’s U.S. Supreme Court nomination may prove to be his sharpest repudiation yet of the anti-immigrant sentiment stirred by Donald Trump.
Sri Srinivasan, a federal appellate judge viewed in some Washington legal circles as the most likely choice of the three finalists Obama is considering, would be the first immigrant selected for the Supreme Court since before World War II.
If he picks Srinivasan, Obama would be turning to a Hindu born in India to reshape the court -- and define the president’s legal legacy -- at a time when Trump is dominating the Republican campaign with calls for a southern border wall and a religious test banning Muslims from entering the country. An announcement could come from Obama this week.
Srinivasan, 49, would be the first Obama Supreme Court nominee with the potential to shift the court to a Democratic-nominated majority. He would bring the liberal credentials of a lawyer who helped Al Gore in the 2000 presidential election dispute and later argued on the side of gay marriage, as well as the résumé of a commercial litigator who represented Exxon Mobil Corp. and Enron Corp.’s Jeff Skilling.
Srinivasan, who grew up in Kansas after his family moved there from India when he was a small child, would also offer an immigrant success story. He would personify the nation’s changing demographics, potentially becoming the first Asian-American justice.
"He is an embodiment of the American dream," said Jon Hacker, Srinivasan’s former partner and fellow appellate lawyer at O’Melveny & Myers in Washington.
An immigrant hasn’t been appointed to the Supreme Court since President Franklin Roosevelt nominated the Austrian-born Felix Frankfurter in 1939.
For some Democrats, Srinivasan would present a striking contrast with Trump’s rhetoric against illegal immigration. With the confirmation battle looming as an important election issue and Republican senators saying they won’t even hold a hearing, Democratic strategists see a Srinivasan nomination as a way to deepen Republican lawmakers’ connection to Trump.
"If Senate Republicans try to build a very tall wall to keep him out, they’ll look just like Donald Trump does to most general-election swing voters," said Steve McMahon, a Democratic strategist. "This would connect them to Trump in a way that few of their members would be comfortable with."
Obama increasingly has challenged Republicans to repudiate inflammatory statements by Trump as contrary to American values. At a pre-St. Patrick’s Day luncheon at the Capitol on Tuesday, the president said divisive campaign rhetoric risks creating a "permission structure" for animosity throughout society.
A Srinivasan nomination also might help solidify a shift among Asian-Americans to the Democratic Party. As recently as 1996, Asians backed Republican presidential candidate Bob Dole over President Bill Clinton. In 2012, 73 percent of them voted for Obama.
"One of the fastest-growing constituencies in the country is Asian-Americans, and they are a constituency that has been moving in the Democratic column," said Mark Mellman, a Democratic political consultant. "Keeping them in the Democratic column would be important."
Srinivasan also would add more subtle layers of diversity to a Supreme Court now dominated by natives of the two coasts and graduates of Ivy League law schools. The Srinivasan family stood out in heavily white Kansas, and Sri learned as a child how to deal with racism, said Hacker, who remembers Srinivasan from their days at rival high schools.
"He knows what it feels like," Hacker said. "He knows how to handle it."
Srinivasan attended Lawrence High School, where he played basketball alongside future professional star Danny Manning. In one incident not directed at Srinivasan, Hacker said fans of his own school once threw bananas during a game toward Manning, who is black.
Srinivasan later attended Stanford University and Stanford Law School and served as a law clerk to Justice Sandra Day O’Connor, a nominee of President Ronald Reagan.
Much like Chief Justice John Roberts, Srinivasan made his mark as a Supreme Court litigator, arguing 25 cases for the federal government and private clients. As an Obama administration lawyer, he helped press the successful challenge to the U.S. Defense of Marriage Act, which defined marriage under federal law as a heterosexual union.
In private practice, Srinivasan represented Exxon Mobil in a suit blaming the oil company for human-rights atrocities in Indonesia. He argued at the Supreme Court on behalf of Skilling, the former Enron chief executive officer who was convicted of spearheading the fraud that destroyed the company.
Obama nominated him in 2012 to the U.S. Court of Appeals for the D.C. Circuit. The following year, Srinivasan told a Senate panel considering his nomination that he would follow a "case-by-case approach" as a judge.
No ‘Grand’ Philosophy
"I do not have an overarching, grand, unified judicial philosophy that I would bring with me to the bench," Srinivasan said.
He was confirmed 97-0 and then took the oath to join the D.C. Circuit by putting his hand on the Bhagavad Gita, the Hindu holy book.
The judge’s record so far bears out his self-characterization, says Tom Goldstein, a Washington appellate lawyer who counts about 120 decisions involving Srinivasan in almost three years on the D.C. Circuit.
"These decisions do not reflect any strong ideology," Goldstein wrote on Scotusblog, the website he founded to track the court. "On the whole, they suggest that Judge Srinivasan would likely be on the center left of the Supreme Court."
Some Obama critics say that even a moderate justice would shift the court unacceptably far. The next justice will succeed the late conservative Antonin Scalia.
"It’s not that Sri is any more liberal than anybody else on the court," said Curt Levey, executive director of the FreedomWorks Foundation. "It’s just that having a fifth liberal on the court will result in the reversal of so many of the legal victories over the past decades that conservatives cherish."
Levey said he doubts a Srinivasan nomination would undercut Republicans’ determination to leave the seat open until the next president takes office.
"It’s not going to cause a lot of cracks," Levey said. "I’m sure it will cause a couple, but not a lot."
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