Will another Obama judicial nominee face GOP roadblocks? Recent history says ‘yes’

McClatchy NewspapersApril 8, 2013 

— Sri Srinivasan has an Indian birth certificate, three Stanford degrees and a ticket to the judicial big leagues; perhaps even, in time, the biggest league of all.

First, though, the Obama administration’s appellate court nominee must survive a Senate obstacle course that has toppled others before him. His ordeal is now about to begin, shining light on a confirmation process that’s bumpy at best.

“You have a situation where so many of them are voted out of committee unanimously, and then never given a floor vote,” White House spokesman Jay Carney said.

On Wednesday, the Senate Judiciary Committee will question Srinivasan for a seat on the U.S. Court of Appeals for the District of Columbia Circuit. It’s his second time around. In June, Srinivasan was also nominated, but with the Senate mired in an election-year slowdown, he never received a confirmation hearing.

But even a hearing is no guarantee of eventually getting a Senate vote, let alone winning confirmation.

A fellow nominee to the D.C. appellate court, former New York Solicitor General Caitlin Halligan, earned a “unanimously well qualified” rating from the American Bar Association but was filibustered by Republicans. GOP lawmakers called Halligan a judicial activist and “extremist,” in the words of senior Republican Sen. Jeff Sessions of Alabama.

In part, Republicans attacked Halligan because of her support for New York gun-control lawsuits. It’s the job of the solicitor general to represent the state’s position. Nonetheless, the Republican filibuster raised Halligan’s burden to an elusive 60 votes, and last month she withdrew, nearly three years after she was first nominated.

“It was both a travesty and a tragedy the way the process treated her,” said Patricia Wald, a retired federal appellate judge.

Halligan’s troubles, though, were not unique.

In February 2010, Obama nominated Goodwin Liu, a law professor at the University of California, Berkeley, to the 9th U.S. Circuit Court of Appeals. Republicans called him a liberal activist and filibustered, driving Liu to withdraw his nomination in 2011. Liu now serves on the California Supreme Court.

Similarly, during the second Bush administration, Senate Democrats blocked acclaimed attorney Miguel Estrada from getting a vote for a seat on the D.C. appellate court. Senate Democrats also stalled John Roberts Jr., now the chief justice of the Supreme Court, when President George W. Bush first nominated him to the D.C. appellate court. Roberts got his seat only after Republicans gained control of the Senate.

“Confirmation of a judicial nomination requires only a simple majority vote,” Sessions, now the ranking Republican on the Senate Judiciary Committee, insisted during a July 25, 2003, Senate debate. “That is why we have never had a (judicial) filibuster. People on both sides of the aisle have understood it to be wrong.”

At the time, Republicans had the Senate majority, so they didn’t want a filibuster to thwart majority rule. Now that they are in the minority, 41 Republicans, including Sessions, united last month in blocking an up-or-down vote on Halligan.

The freeze-out leaves the 11-seat D.C. Circuit with four vacancies. Obama is the first president to go through an entire first term without getting an appointee confirmed to the D.C. court. The fault, though, isn’t just the Senate’s. Obama waited for nearly two years into his first term before making his first D.C. court nomination.

“It’s vital that the D.C. Circuit be un-hostaged, and that new judges come on,” Wald, who served on the D.C. Circuit court for 20 years, said at a briefing last month sponsored by several liberal think tanks.

The court is more important than most for several reasons, especially its oversight of federal administrative decisions. Unless its decisions are overturned by the Supreme Court, its rulings on federal actions apply nationwide.

In the past three months, for instance, the appellate court has ruled on everything from the CIA’s secret drone documents and California’s almond processing rules, to polar bear protections and renewable fuel standards. It struck down Obama’s National Labor Relations Board recess appointments and heard arguments from a North Carolina religious college challenging Obama’s health care law.

Beyond its rulings, the D.C. court can be a farm team for the Supreme Court. Four of the current nine Supreme Court justices formerly served on the D.C.-based appellate court.

Srinivasan has been eyed for the court ever since Obama took office. In a Senate Judiciary Committee questionnaire, he reported that administration officials first broached the idea of a nomination in November 2009.

“He will be, when confirmed, the first South Asian circuit court judge in history,” Carney noted this month.

Known formally as Srikanth Srinivasan, the 46-year-old attorney was born in Chandigarh, India. Raised in Lawrence, Kan., he graduated from Stanford University in 1989 and earned dual degrees from the university’s law school and business school.

Srinivasan clerked for Supreme Court Justice Sandra Day O’Connor, a Republican nominee. He then alternated between private practice and the solicitor general’s office before becoming Obama’s principal deputy solicitor general in 2011. It’s a path others have followed all the way to the top.

John Roberts, notably, held the same deputy solicitor general position before being elevated to the D.C. appellate court, the same one Srinivasan now hopes to join.

“I really can’t think of a more important court, perhaps other than the Supreme Court, to focus on,” said Andrew Blotky, director of legal progress at the liberal Center for American Progress.

Email: mdoyle@mcclatchydc.com; Twitter: @MichaelDoyle10

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