Sri Srinivasan, tapped to sit on the prestigious U.S. Court of Appeals for the District of Columbia Circuit, was only a supporting actor at his Senate Judiciary Committee nomination hearing today.
Instead, the partisan debate over judicial vacancies on the federal courts took center stage as Republicans and Democrats traded accusations over the speed at which the president’s judicial nominees are being considered and confirmed.
The principal deputy to the Solicitor General has become the public face of the White House’s push to fill one of four open seats on the D.C. Circuit with the shadow of former nominee Caitlin Halligan hanging over the hearing.
The White House officially withdrew Halligan’s nomination last month at her request after repeated attempts to confirm the former New York state solicitor general were filibustered by Senate Republicans.
Democratic Sens. Sheldon Whitehouse of Rhode Island and Charles Schumer of New York accused Senate Republicans of breaking the “Gang of 14 deal” reached during the George W. Bush administration when seven Democrats and seven Republicans joined together to allow up-or-down votes on certain high-level judicial nominees except in the case of “extraordinary circumstances.”
Contending that one side “broke the agreement,” Whitehouse suggested the so-called nuclear option of changing Senate rules to limit filibusters be considered if Republicans attempt to block Srinivasan, who has already waited nearly a year for consideration after his initial June 2012 nomination. His nomination expired at the end of the last Congress without action, and President Barack Obama renominated him earlier this year.
Srinivasan, who argued in the Supreme Court recently to strike down the 1996 Defense of Marriage Act barring federal recognition of same-sex marriages, has bipartisan credentials that would normally make him a relatively uncontroversial nominee. But the influential D.C. Circuit is considered a stepping stone to a Supreme Court nomination, and Republicans have so far prevented Obama from filling any of the four open slots.
Ranking Republican Charles Grassley of Iowa disputed the criticism.
“To date, we have confirmed a total of 181 of President Obama’s judicial nominees,” Grassley said. “During that same time, the Senate has defeated only two nominees. That is a record of 181 to 2. Stated another way, the president has a batting average of .989. I don’t know how any president could complain about that kind of average.”
Grassley went on to question Srinivasan over his involvement in a disputed deal between the Justice Department and the city of St. Paul, Minn., over the dropping of a Supreme Court appeal regarding the Fair Housing Act.
The issue is getting added scrutiny because Civil Rights Division Assistant Attorney General Tom Perez played a role in the deal, and Republicans have vowed to ask him about it at his confirmation hearing next week to be the next Secretary of Labor.
Grassley appeared quickly satisfied with Srinivasan’s answers about his limited role in the dispute. This set the tone for mostly amiable exchanges between the nominee and the other senators on the committee.
Sen. Ted Cruz (R-Texas), a Tea Party-backed freshman, displayed none of what is considered his trademark arrogance today. Rather, he surprised those gathered by noting that he and Srinivasan had been “friends for a long time,” having both clerked together for Judge J. Harvie Wilkinson III on the 4th U.S. Circuit Court of Appeals.
“I am hopeful that our friendship will not be seen as a strike against you by some,” Cruz said jokingly.
Srinivasan, who would become the first appeals court judge of South Asian heritage, is already generating buzz as a potential Supreme Court nominee. His high-profile may have led to many of the senators in attendance to press him on his broader ideological philosophy.
While praising the nominee as an individual, Cruz did ask Srinivasan to explain his understanding of “judicial activism,” a common complaint among conservatives of liberal-leaning jurists.
While noting he was “very likely to support” Srinivasan, Sen. Orrin Hatch (R-Utah) pressed him about how he would switch gears from an advocate to a judge.
Satisfied by his answers, Hatch said: “There are differences between being an advocate and a judge, and I think you understand them.”
Virginia Democratic Sens. Tim Kaine and Mark Warner introduced Srinivasan, who lives in the Commonwealth. Sitting in the front row were Srinivasan’s wife and their 11-year-old twins, Maya and Vikram, as well as his mom, Saroja and nephew, Akhil.
In a show of solidarity, Solicitor General Donald Verrilli attended the hearing along with Preet Bharara, the U.S. Attorney for the Southern District of New York, and a rising star in his own right.
Schumer, for whom Bharara once worked on the Judiciary Committee, good-naturedly joked to the U.S. Attorney in the audience that he should watch what it feels like to “become a judge.”
Meanwhile, a number of senators, including Schumer, mentioned the bipartisan backing for Srinivasan in the weeks leading up to the hearing.
Srinivasan received support from more than two dozen former Supreme Court clerks who clerked alongside Srinivasan, himself a former clerk for Justice Sandra Day O’Connor, during the high court’s 1997-1998 term.
He got a similar vote of confidence from former Solicitors General who praised his “first-rate intellect” and “unimpeachable character.”
Obama has called Srinivasan a “trailblazer,” saying he “will serve the court with distinction and excellence.”
From 1995 to 1996, Srinivasan served as a law clerk on the D.C. Circuit, and then spent a year as a Bristow Fellow in the Office of the Solicitor General before clerking for Justice O’Connor. Srinivasan was hired as an associate at O’Melveny & Myers LLP from 1998 until 2002.
In 2002, he returned to the Solicitor General’s Office as an Assistant to the Solicitor General.
He left the government in 2007 and rejoined O’Melveny as a partner. Then, in August 2011, he came back to the Office of the Solicitor General as the principal deputy.
Srinivasan received his B.A. from Stanford University in 1989 and his J.D. from Stanford Law School in 1995. He also holds an MBA from the Stanford Graduate School of Business.