Obama likely to look to appellate courts for Scalia’s replacement

Monday, February 22, 2016

By Michael Doyle

McClatchy Washington Bureau



WASHINGTON — Kansas-raised and Stanford-educated, federal appellate Judge Sri Srinivasan could next secure the possibly mixed blessing of being nominated to the Supreme Court by a president nearing the end of his term facing a partisan Senate. Srinivasan is not the only potential contender for a nomination that’s certain to spark an election-year fight but by no means guarantees confirmation. He is, though, among the apparent front-runners.

“I know very little about the politics of the nomination, but I know that Sri would be a truly outstanding nominee in all respects,” former Kansas-based federal appellate Judge Deanell Reece Tacha said Sunday. “He is exceptionally well-qualified; an outstanding jurist with a powerful intellect and deep respect for the law.” Tacha, now dean of the Pepperdine University School of Law in California, has known Srinivasan since he was a basketball-playing high school student in Lawrence, Kan. In an email, she praised his fitness for the nation’s highest court. “I hope he will be given serious consideration,” she said. But the calculations, always tricky when it comes to Supreme Court nominations, now include even more variables than usual as President Barack Obama confronts the election-year vacancy left by the death of Justice Antonin Scalia. “Nino Scalia was a legal titan,” Justice Stephen Breyer acknowledged Sunday.

One conventional option for Obama would be to offer maximum accommodation to the Republicancontrolled Senate. Srinivasan’s colleague on the U.S. Court of Appeals for the District of Columbia Circuit, Chief Judge Merrick Garland, for example, is the kind of former federal prosecutor conservatives like. His name has been publicly mentioned in connection with past vacancies. But with Senate Republican leaders insisting that the Supreme Court seat be filled by the next president, and with some ambitious rank-and-file Republican senators having the potential to stage a filibuster, even a classic middle-of-the-road contender could fail.

Such political posturing against any Obama nominee could, in turn, ratchet up the White House’s own political motivations. Selecting a female, ethnic minority or openly gay candidate, for example, might rally certain constituencies in November against Republican intransigence. Several potential candidates could fit the bill. Srinivasan was born in India and would be the first Indian-American nominee to the Supreme Court. Another one of his colleagues on the U.S. D.C. Circuit Court of Appeals, Patricia Ann Millett, has attracted court-watchers’ attention as well, as has former Massachusetts Gov. Deval Patrick, who is African-American. Attorney General Loretta Lynch also might have some appeal; she would be the court’s first African-American female nominee. Obama does have a deep bench to choose from. Since taking office in January 2009, he has placed 55 judges on the various courts of appeal, a traditional route to the Supreme Court. Scalia had served on the D.C.-based appellate court before his 1986 elevation to the Supreme Court, as did three of the other remaining Supreme Court justices. Garland has served on the appellate court since 1997, a record that’s a doubleedged sword for his Supreme Court prospects. While few can match his lengthy bench experience, it also underscores his age. At 63, he’s at least eight years older than the past four Supreme Court nominees were when selected. Presidents customarily like to appoint Supreme Court justices who are young enough to shape the legal landscape for the foreseeable future. Obama’s last nominee, Justice Elena Kagan, had just turned 50 when nominated in 2010. Beyond tapping the traditional appellate courts, Obama could in theory seek to broaden the Supreme Court’s makeup by looking to the political arena. None of the current eight justices have direct experience in electoral politics. Srinivasan, though, could be in the front ranks, a stature demonstrated by his 97-0 confirmation in 2013 by the Senate to his current position. Joining in the vote for Srinivasan were Republican senators Ted Cruz of Texas and Marco Rubio of Florida, both of whom are now running for the Republican presidential nomination. “Mr. Srinivasan has broad support,” Republican Sen. Lamar Alexander of Tennessee acknowledged at the time. Srinivasan earned undergraduate, law and business degrees from Stanford. Hinting at his potential bipartisan appeal, he clerked for a Republican appointee, former Supreme Court Justice Sandra Day O’Connor. At 48, Srinivasan has the relative youth that presidents like. He’s also now served nearly three years on the D.C. appellate court, which is longer than the appellate apprenticeships of either Chief Justice John Roberts Jr., or Justice Clarence Thomas. “Sri possesses all of the abilities, experience and commitment to service that have distinguished the finest jurists in our history,” Tacha said.

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