At the top of many lists of the potential picks that President Barack Obama could make to fill Justice Antonin Scalia’s seat on the Supreme Court is an appeals court judge the Senate unanimously confirmed in May 2013.
The Senate voted 97-0 to confirm Sri Srinivasan to the U.S. Court of Appeals for the D.C. Circuit, sometimes referred to as the second-highest court in the land behind the Supreme Court because it decides many regulatory issues that have a nationwide scope.
In the confirmation process, Srinivasan garnered broad support from both Democrats and Republicans, including Majority Leader Mitch McConnell , R-Ky., Sen. Charles E. Grassley , R-Iowa, Sen. Orrin G. Hatch , R-Utah., and Sen. Ted Cruz , R-Texas.
"We have been friends for a long time – so I am hopeful that our friendship will not be seen as a strike against you by some,” Cruz said, a remark that drew laughter in the hearing room. Cruz, now seeking the Republican nomination for president, noted that both he and Srinivasan served as law clerks for judges on the 4th Circuit Court of Appeals in 1995 and 1996.
Hatch told him, “I think you’re going to make a great circuit court of appeals judge and I intend to support you."
McConnell and Grassley issued statements Saturday that the president shouldn't make a nomination before the November presidential election. Supreme Court decisions often become political issues and the appointment to fill a vacancy is likely to add to the debate on the campaign trail this year. Scalia was one of the court's conservatives. Democrats hope they can replace him with a more liberal justice and Republicans want another conservative on the bench.
Srinivasan, responding to a question from Cruz, said he did not believe in the idea of “a living constitution” with a meaning that judges change as social conditions change. “The Constitution has an enduring, fixed quality to it,” he said.
His confirmation hearing in 2013 was also held in the presence of a large South Asian community, potentially adding a variable to the political calculus that surrounds high court nominations.
Srinivasan would be a consensus candidate that Obama could pick “if he wanted to try to lower the temperature” of Senate politics, said appellate lawyer John Elwood, a partner at Vinson & Elkins in Washington. Obama also could consider nominating another woman to the court in an effort to make it five men and four women, Elwood said.
Potential picks could be Judges Patricia Millette or Cornelia “Nina” Pillard, both widely praised judges on the D.C. Circuit but both filibustered in the Senate when Republicans objected to how many judges Obama was picking for the D.C. Circuit. Both were eventually confirmed in 2013 after Democrats changed the filibuster rules to make it easier to confirm some appointees.
Norman Ornstein, a scholar at the American Enterprise Institute and long-time observer of Congress, floated the possibility of Democratic Sen. Amy Klobuchar of Minnesota, as well as Merrick Garland, the chief judge of the D.C. Circuit.
Sen. Lindsey Graham , R-S.C., reportedly floated the idea Saturday of Utah Republican Sen. Orrin G. Hatch as a potential nominee that some Republicans might support.
Srinivasan is a potential nominee who first comes to mind because his work history is bipartisan. He clerked for Supreme Court Justice Sandra Day O’Connor, a Reagan appointee. He worked in the Justice Department during the George W. Bush administration, and at the time of his appointment was principal deputy solicitor general at the Justice Department under Obama who was frequently an advocate before the Supreme Court.
Of course, the scrutiny for a Supreme Court pick is vastly elevated from that for even the D.C. Circuit. And even his broad support didn’t keep his nomination from being held up in Senate politics for almost 11 months. McConnnell and Grassley have already said the pick to fill Scalia’s seat should fall to the next president.
Tom Curry contributed to this report.
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