Bloomberg
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.
Felix Frankfurter
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.
Fast-Growing Constituency
"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.
O’Connor Clerk
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."
‘Fifth Liberal’
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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