Just when we thought 2016 could not possibly become a more interesting and bizarre year in US politics, the irreversible laws of mortality threw another unexpected twist into the hustings. This weekend we witnessed the passing of a sitting Supreme Court justice, my fellow Georgetown alum Antonin Scalia.
The massive consequences of a sudden opening in the highest court in the land with one year to go before the next US president takes office cannot possibly be overstated. The court now stands at a precarious 4-4 balance between conservative and liberal justices, with the all-important vacancy possessing the real power to tip the scales of justice left or right for decades to come. Scalia was the most reliably conservative and vocal voice on that bench. The 2016 presidential election outcome is still highly uncertain; we don’t know who the next prez will be yet. It is also unclear when the next vacancy might pop up.
These variables and moving parts have brought us all to a bit of an impasse just when some large judicial questions are hanging in the balance. Scalia’s body was hardly getting cold before the GOP presidential candidates and Senate leadership, with Majority Leader Mitch McConnell in the vanguard, promised not to budge an inch from their demands to block an Obama nominee that he has not even named. As long as this critical vacancy exists, any 4-4 tie is the equivalent of simply affirming the lower court’s decision- or, just about the same as having no effect on jurisprudence at all despite being the highest court in the land.
This situation is outrageous, and should not have to fester until 2017. Fortunately, there is a simple and elegant solution, one that would be palatable to all sides: the nomination by Obama and confirmation by the Senate of Srikanth “Sri” Srinivasan, a United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit. Srinivasan is a highly respected, pragmatic, centrist, and eminently qualified Indian-American judge, already considered before by some to be on the shortlist for a SCOTUS nomination by the White House. Below, we will analyze some of the angles to watch for in the coming months.
The Party of No Can Earn its Keep Scalia’s death struck a powerful blow to movement conservatives. There is no way that they want him replaced by an inevitably more liberal Obama appointee. Several arguments are already making the rounds in Republican circles about why to delay the process until the party might retake the White House. The foremost among them seems to be that because it’s an election year, the decision should be deferred until citizens have decided the direction they want their country to go in- and the choices do indeed seem as stark as ever on that count.
Conservative voters have made their opinion abundantly clear: their Senators need to hold the line and block, filibuster, bite, or scratch to keep another Obama appointee out of the Supreme Court following the two he already safely placed, Kagan and Sotomayor. Any appointee. Even if this naked intransigence might cost some seats in Congress, there will be incredible pressure on Senators to not break the picket line. “The opposition has nothing to do with the candidate – it’s about having a Republican president pick a Republican nominee. Don’t get the two confused,” a source in Washington told me.
However, the right nominee could do the Republican party some harm this election season, resulting in a GOP Senator here and there being picked off. Srinivasan is that nominee.
Obama’s Not Having Any of it Obama knows all this, and to boot his legacy is on the line once again. This places the lame duck Obama team unexpectedly, squarely back in the center of it all, which seems to be happening quite a lot in the fourth quarter of this administration. The ball is in his court, and the president has made very clear that he will fulfill his constitutional duty to nominate a replacement. The liberal base is already on his case to fight for an appointment. Democratic Senators are likely to stay strong with their votes.
Obama is going to nominate. The only question is who. After that, something has to give. This is the perfect scenario for the nomination of Sri Srinivasan, an Obama appointee to the lower court who received a unanimous 97-0 confirmation to his current post in 2013, winning over every last Republican and Democrat in the chamber. “Mr. Srinivasan will be a trailblazer,” the president said at the time.
Why Sri Now? In a land where bitter partisanship taints nearly every single federal appointment, Srinivasan stands out for his qualifications- and for probably being the only name that stands a chance during the twilight of the Obama presidency. Srinivasan has a stellar academic record. He worked at a private law firm, and lectured at Harvard Law. Srinivasan clerked for the conservative Sandra Day O’Connor. As Deputy Solicitor General, he argued 25 cases before the Supreme Court, including a deft case against the Defense of Marriage Act (DOMA) that helped pave the landmark Supreme Court’s ruling. He is a veteran of the George W. Bush Justice Department as well as Obama’s, showing bipartisan experience and appeal. McConnell and friends unanimously voted for him already- which would make backtracking rather awkward, requiring contorted arguments that could upset moderates or all of those who dislike having a crippled third branch of government.
True Test for the Indian-American Diaspora It’s not only Senate right-wingers who will have their mettle tested. A Srinivasan nomination will undoubtedly be difficult, and the Indian-American community will have to prove not only to the political parties how strong and united they are, but also to other special interests, including ethnic communities like Latino, Chinese-American, or African-American who have short list candidates of their own.
Indian-American leaders rightly show pride about their clout encompassing both sides of the aisle, and various geographic enclaves across the United States. Through hard work, politicians from both parties have aligned with some of the interests of India and Indian-Americans. But this support is not guaranteed. It will continue having to be earned the hard way, through advocacy and negotiation in a politically challenging environment. The United States – India Political Action Committee (USINPAC) has promised to rejoin this fight on behalf of an Indian-American justice such as Srinivasan.
“President Obama should know that if he nominates Srinivasan or any of the other several qualified Indian Americans to serve on the US Supreme Court, USINPAC is standing ready to advocate for his or her confirmation and will expend every effort towards that end” said Sanjay Puri, Chairman of USINPAC. “Having an Indian American on the US Supreme Court is a once in a life time opportunity and supporting an Indian American’s confirmation by the U.S. Senate will be our top priority.”
USINPAC has promised an unprecedented effort to mobilize the Indian-American community and press politicians on this front. Other advocacy groups such as the South Asian American Bar Association (SABA), American Association of Physicians of Indian Origin (AAPI), the Embassy of India, and Indian-American media groups will need to jump in, too.
Srinivasan is an ethnic minority, in a year where the Republican front-runner has mercilessly bashed women, Hispanics, Muslim immigrants, the Chinese, and immigrants in general. Those who would oppose Srinivasan had better think twice about the harm it might do among all minority voters and interest groups.
What Happens Next ? The battle lines have been drawn. If we have learned anything this season, it’s that both liberal and conservative bases are highly mobilized, passionate, and unsatisfied. The stakes don’t often get as high as a wide open Supreme Court seat- so expect the issue to feature prominently in the news this year.
A drawn out fight over a Srinivasan may not be the worst thing in the world for Democrats. Hillary Clinton and Bernie Sanders, who will obviously come out in support of an Obama nominee, would love to have the nominee be theirs in the event of a win in the primary and then general election.
On the other hand, Republicans have more to lose the longer they hold out. All it would take to reverse McConnell’s stance is four defectors from the GOP, assuming Democratic Senators all held the line, which for Srinivasan is likely. So the nomination battle is really turning out to be a smaller slice of the larger wars for control of the White House and Senate, and it’s unclear how they will all affect each other. The overall layout does seem to favor the Democrats though.
Srinivasan has the goods. But do we? “Fighting for Sri’s nomination is important for our community. We dropped the ball on Vivek Murthy (for Surgeon General),” my Washington source told me. “So it’s a good exercise for us.”
Indeed. Based on all I’ve learned in the last few years, Sri Srinivasan will be getting my unequivocal support. Regardless of your background, you can help too if you believe in this cause:
- SIGN THE WHITE HOUSE PETITION started by USINPAC in support of Srinivasan or another qualified Indian-American judge being nominated by Obama.
- EMAIL YOUR SENATORS
- EMAIL YOUR CONGRESSPERSON
- Spread the word!
This is kind of a big deal. We have approached a seemingly intractable problem, where the solution best for the Democrats, the Republicans, the Indian-American community, and the country is a centrist, pragmatic, and qualified public servant being given an unprecedented opportunity.
Let’s help get Sri in there and make some history.
Mahanth S. Joishy is Editor of usindiamonitor
UNITED STATES-INDIA MONITOR 