On the surface, Tuesday seemed like just another day at the office for two top appellate judges who could be quietly competing for a new Supreme Court opening.
Well outside the polite confines of the U.S. Court of Appeals for the District of Columbia Circuit, Democrats and Republicans were clashing operatically over a potential replacement for the late Justice Antonin Scalia.
But inside Courtroom 31, Kansas-raised Judge Sri Srinivasan and Illinois-educated Judge Patricia Ann Millett calmly sorted through cases that showcased the scope of their work as well as some of their differences and similarities with the man they might be asked to replace.
During back-to-back oral arguments in three separate disputes, Srinivasan and Millett pressed attorneys with the persistence of Scalia but without the late justice’s sometimes caustic zeal. Both seemed keen on finding answers to serious problems, about which they kept their minds open.
“Can you just walk me through, step by step, your best-case scenario?” Srinivasan asked an attorney in one case.
“I’m just trying to understand the rules,” Millett told another attorney, adding, “I’m just trying to understand these categories.”
Srinivasan, Millett and one of their colleagues who was not part of the three-member panel hearing cases Tuesday, 63-year-old Chief Judge Merrick Garland, populate the somewhat ephemeral list of potential contenders for President Barack Obama’s next Supreme Court nomination.
Others potentially in the mix – meaning court-watchers are talking about them – range from Attorney General Loretta Lynch to appellate Judge Paul Watford, a California native. Both Lynch and Watford are African-American.
Whether the eventual nominee gets a Senate hearing and a vote this year remains unclear.
“Look, we are in a tremendous presidential campaign,” Republican Sen. Orrin Hatch of Utah said Tuesday on CNN. “There is a lot of bitterness on both sides. Let’s defuse this thing and let’s put this off until the next president of the United States.”
It’s a point countered by Democrats, who note that Supreme Court justices have been confirmed multiple times in the last century during election years, most recently with the appointment by President Ronald Reagan of sitting Justice Anthony Kennedy in 1988.
Beyond their legal qualifications, either Srinivasan or Millett could offer Obama a chance to make history while helping to rally Democratic voters. Srinivasan would be the first Indian-American on the Supreme Court. Millett would mark the first time the high court had four female justices.
I'm going to resist the urge to engage in speculation about lists and names.
White House spokesman Eric Schultz, on Monday
Both, as it happens, have Midwestern roots.
The daughter of a Southern Illinois University professor, Millett graduated from Triad High School in Troy, Illinois, before attending the University of Illinois and Harvard Law School. The son of a University of Kansas professor, Srinivasan graduated from Lawrence High School before earning three Stanford degrees.
“Sri possesses all of the abilities, experience and commitment to service that have distinguished the finest jurists in our history,” former Kansas-based federal Judge Deanell Reece Tacha, now dean of the Pepperdine University School of Law, said in an email.
The 48-year-old Srinivasan and the 52-year-old Millett have served on the appellate court since 2013. It’s sometimes called the nation’s second-highest court because of the range of federal issues it handles. On Tuesday, these included prison sentencing, a National Labor Relations Board case and a Freedom of Information Act request for complaints against immigration judges.
Further underscoring the court’s scope, Srinivasan’s written opinions have included decisions upholding Federal Trade Commission action against California-based POM Wonderful and rejecting claims filed on behalf of some of Iran’s alleged torture victims.
The appellate court has also often been a feeder to the Supreme Court. Oil portraits of alumni who earned the ultimate judicial promotion, including Justice Ruth Bader Ginsburg and former Chief Justice Warren Burger, hang on the walls of the fifth-floor courtroom.
The walls also hold, in what could be read as a cautionary tale, a portrait of the late Judge Robert Bork. Republicans now cite Bork’s unsuccessful 1987 Supreme Court nomination, where he failed on a 42-58 Senate vote, as the start of the two parties’ endless judicial blood feud.
The two hours of oral argument Tuesday morning seemed a world apart from the political arena, where Srinivasan’s or Millett’s future might be decided.
“I’m asking this question out of my own ignorance,” Millett told one attorney.
“Just bear with me for a moment,” Srinivasan politely asked another.
Though he didn’t troll for laughs as Scalia sometimes did, Srinivasan flashed some dry wit when, discussing an alleged gunman who supposedly stopped to clean up bullet casings, he asked skeptically whether “his custodial instincts took over.” Millett played it straight throughout.
Unlike Scalia and other Supreme Court justices, Srinivasan and Millett consistently let attorneys finish their thoughts, sentences and sometimes even whole paragraphs before wading in. They asked follow-ups, though, sometimes for each other, and they would not let go until satisfied.
“Can I just go back,” Srinivasan asked one attorney, “to the original line of questions?”
And they did, because that’s what the judge wanted.