Climate and the Court: Could a Nominee Tip the Balance?
February 18, 2016
A name that’s come up as possible nomination to replace Antonin Scalia on the Supreme Court is Sri Srinivasan. There’s a lot of three dimensional chess triangulation going on around this play. The jurist is not easy to pigeon hole.
My guess is Obama’s nominee will not be the one we hear about in the press, but nevertheless, here’s a primer.
His career seems like a bipartisan dream. After graduating from Stanford—where he got a B.A. and a joint law and business degree—Srinivasan clerked for moderate Republican appeals court judge J. Harvie Wilkinson III and Supreme Court judge Sandra Day O’Connor. Then he did stints in private practice at the well-respected D.C. firm O’Melveny Myers and at the office of the Solicitor General—the chief lawyer of the federal government—during the Bush and Obama administrations.
“I worked with him closely for many months, and I never would have guessed he had any political ideology one way or another,” said Timothy McEvoy, his co-counsel on the Abuelhawa case. “He was utterly devoted to the rule of law and doing the right thing within the precedents of the Supreme Court.”
Srinivasan did donate a total of $4,250 to Obama’s 2008 campaign and made smaller donations to an Indian-American Democratic congressional candidate in Kansas and Al Gore’s presidential campaign, FEC data shows.
Following the 2000 election, he worked on Gore’s legal team during the dramatic Florida recount and the Bush v. Gore Supreme Court case. Ron Klain, the lawyer and White House official who led the Gore side, told me Srinivasan was one of “a bunch of folks from O’Melveny who volunteered” to work on the case pro bono. (Klain didn’t remember Srinivasan’s exact role—”it’s kind of a blur now,” he said.)
Some liberal groups have objected to Srinivasan’s history of defending big corporate clients from human rights lawsuits. He represented Exxon Mobil in a case about whether the company’s private security forces committed torture and murder in Indonesia, and mining company Rio Tinto in a similar case about alleged abuses in Papua New Guinea. He also successfully represented convicted Enron CEO Jeffrey Skilling, convincing the Supreme Court to narrow its interpretation of a fraud statute.
But he also represented immigrants pro bono while at O’Melveny. While at the Solicitor General’s office in 2013, he argued against the Defense of Marriage Act. And he wrote a Slate op-ed calling Indiana’s voter ID law “harmful and worthless,” although he later said that was written as part of representing a client.
A few of Srinivasan’s more interesting opinions include:
- Supporting claims of Holocaust victims who are suing the Hungarian government for the mass deportation of Jews to Nazi Germany in 1945. In an opinion decided last month, he overturned a lower court ruling dismissing the lawsuit, arguing that the Holocaust victims could sue in U.S. courts to reclaim property stolen by the Hungarian government at the time.
- A strong dissent in a case about whether the federal government can require the labeling of products that use “conflict minerals” from the Democratic Republic of Congo. Unlike two of his colleagues, Srinivasan argued in August 2015 that the government was able to require labeling, noting “in the context of commercial speech, the compelled disclosure of truthful, factual information about a product to consumers” does not necessarily violate the First Amendment.
- A ruling in August 2015 upholding a law that bans protesters from parading and waving signs on the plaza outside the Supreme Court building. “The government retains substantially greater leeway to limit expressive conduct in such an area and to preserve the property for its intended purposes: here, as the actual and symbolic entryway to the nation’s highest court and the judicial business conducted within it,” he wrote.
Marco Simons, the chief counsel at EarthRights International, an environmental group that opposed Srinivasan’s nomination in 2013, told me they would not do so again because he “has demonstrated that he is a fair and thoughtful jurist who is not held captive by the interests of powerful corporations.”
Some environmentalists are already criticizing Sri Srinivasan’s environmental credentials because as a lawyer at O’Melveny & Meyers he defended Exxon Mobil and Rio Tinto, a mining company, in cases alleging human rights abuses in Indonesia and Papau New Guinea. He also represented Enron villain Jeff Skilling. But I wonder if Srinivasan’s nomination raises a different, more immediate liability: he is currently on the three-judge D.C. Circuit Court of Appeals panel slated to hear the state and coal industry challenge to the President’s Clean Power Plan. Why is that a liability? Because the Obama Administration may want to keep him on that panel and if he’s nominated to replace Justice Scalia on the Supreme Court, he may feel compelled to recuse himself from the panel. If the Obama Administration calculates that Srinivasan is unlikely to get Senate confirmation, advisors may decide that they’d rather have him on the Clean Power Plan panel than offer him up as the sacrificial nominee.
Why would Srinivasan recuse himself? As I explained in an earlier post, under 28 U.S.C. Section 455, a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Srinivasan could feel that litigants in the CPP case before him could be concerned that he would alter his vote on the CPP case pending in the D.C. Circuit to influence Senators who might vote on his pending Supreme Court nomination — how he votes on the CPP as a D.C. Circuit Court judge could easily influence how a Senator would view his appointment to the Supreme Court. Even if Srinivasan is confident that he can be impartial, he may worry about the appearance of impropriety.
It’s no secret that the Environmental Protection Agency drew a panel of judges in the D.C. Circuit that is much more likely to defer to EPA’s exercise of its authority under the Clean Air Act to regulate power plants than some possible alternatives. In addition to Judge Srinivasan, the panel includes Judge Judith Rogers, a strong backer of EPA authority, and Karen Henderson, a George H. W. Bush appointee who is thought to be relatively moderate. EPA could have faced a much more conservative panel, as it did in defending its regulations to cut air pollution that crosses state lines. That panel included two Republican appointees hostile to expansive regulatory authority, who not only struck the regulations down but voted to stay the implementation of the rule pending the panel’s ruling on the merits of the case (the panel was subsequently overturned by the Supreme Court in EME Homer Generation v. EPA). The panel that is set to hear the Clean Power Plan challenge is not, of course, a sure bet to uphold the Clean Power Plan. No panel is. And Judge Henderson may be less likely to defer to EPA’s exercise of regulatory authority than the two Democratic appointees on the panel. If Srinivasan feels compelled to recuse himself, his replacement could be far more conservative, someone like Judge Brett Kavanaugh, who authored the court of appeals opinion striking down the cross state air pollution rule. If the odds of a Supreme Court nominee being confirmed by the Senate are extremely low, why take the risk and appoint Srinivasan and also risk altering the balance of power on the D.C. Circuit panel hearing the Clean Power Plan?