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Potential nominee: Judge Sri Srinivasan, appellate veteran

Having argued twenty-five cases before the Supreme Court, served under five Solicitors General, and won unanimous confirmation to the D.C. Circuit, Sri Srinivasan is an obvious candidate to be considered for the Supreme Court. Politically, his experience and heritage make him a compelling choice.

He is difficult to label as particularly liberal or conservative. Like most potential nominees, he has refrained from taking public stances on hot-button issues like campaign finance, gun control, abortion law, and affirmative action. His three years on the D.C. Circuit do not reveal a particular judicial philosophy.

Srinivasan was born in Chandigarh, India, but grew up in Lawrence, Kansas. After earning his undergraduate, business, and law degrees from Stanford University, he clerked for two Reagan appointees: Judge J. Harvie Wilkinson III and Justice Sandra Day O’Connor. From there, he joined the firm of O’Melveny & Myers, where he worked between his stints in government.

Srinivasan has spent much of his career in public service. As mentioned above, he served under five Solicitors General in both Democratic and Republican administrations. This résumé has won him credibility on both sides of the aisle. During his 2013 confirmation process, he received vocal support from influential conservatives Ted Olson and Paul Clement.

At O’Melveny & Myers, Srinivasan represented a wide array of clients in appellate litigation. One of his most notable arguments was Skilling v. United States, in which he defended the former C.E.O. of Enron against charges of “honest services” fraud. Another key argument was Sarei v. Rio Tinto, in which he defended a mining company from claims under the Alien Tort Statute. These positions have drawn criticism from labor and environmental groups. However, as MSNBC reports, many of these groups have recently withdrawn their concerns.

Srinivasan also did pro bono work at O’Melveny. In 2000, he worked on Bush v. Gore, representing Gore. In 2009, he defended a Palestinian immigrant accused of a drug felony. The case was ultimately argued before the Supreme Court, Abuelhawa v. United States.

Prior to joining the bench, Srinivasan published few written works. At Stanford, his law review notes addressed college financial aid and capital sentencing doctrine. In 2008, he criticized Indiana’s voter identification laws, arguing the Supreme Court should “exercise its independent judgment” to strike them down. In 2009, he questioned the “pro-business” reputation of the Roberts Court, suggesting some flaws with the label. That’s about it.

On the D.C. Circuit, Srinivasan has penned majority opinions on an array of topics. He has a number of decisions involving international and extraterritorial law. In Simon v. Hungary, his opinion for the court sided with Jewish survivors of the Hungarian Holocaust, who had sued the Hungarian government. In United States v. Ballestas, the court expanded the extraterritorial reach of the Maritime Drug Law Enforcement Act. He has also written in cases involving the Organization of the Petroleum Exporting Countries (Freedom Watch v. OPEC) and the Islamic Republic of Iran (Mohammadi v. Islamic Republic of Iran).

On environmental issues, Srinivasan has written opinions both for and against regulation by the Environmental Protection Agency. In Natural Resources Defense Council v. EPA, his opinion for the court held that portions of the agency’s 2008 ozone standards exceeded its statutory authority. In Hermes v. EPA, the court rejected all but one challenge to a renewable fuels program, with the surviving charge pertaining to a factual error in the agency’s records. In West Virginia v. EPA, Srinivasan denied a stay to the agency’s “Clean Power Plan.” The Supreme Court later granted the stay on a five-to-four vote.

In Home Care Association v. Weil, Srinivasan wrote an important opinion on labor law. The Fair Labor Standards Act (FLSA) guarantees most workers a minimum wage and overtime pay, but makes exceptions for some home care employees. In this case, the Department of Labor lifted that exemption for a particular group: employees of third-party agencies who provide in-home care to the elderly, ill, or disabled. The plaintiffs, owners of these agencies, argued that the department overstepped its bounds, violating the text of the FLSA. Srinivasan, however, sided with the department, arguing that it has significant discretion in applying the law. The agencies have since filed for cert. in the Supreme Court.

Srinivasan also wrote on the First Amendment case, Hodge v. Talkin. The case addressed a federal statute, banning certain forms of protest on the Supreme Court plaza. The court upheld the statute, arguing that the plaza was a nonpublic forum and that the ban protected a reasonable governmental interest. This interest was twofold: maintaining “the decorum and order befitting courthouses generally” and promoting “the appearance and actuality of a Court whose deliberations are immune to public opinion and invulnerable to public pressure.” Protests are still permitted on adjacent public sidewalks. The plaintiffs have filed for cert. in the Supreme Court.

In National Association of Manufacturers v. SEC, Srinivasan issued a strong dissent involving compelled speech under the First Amendment. At issue was an SEC rule requiring manufacturers to determine whether their products contain “conflict minerals,” which would compel some manufacturers to label their products as “not conflict free.” The panel majority struck down this rule, concluding that the label is “a metaphor [to] convey moral responsibility for the Congo war” and that the First Amendment cannot compel companies to make political statements. Srinivasan dissented, writing that, “in the context of commercial speech, the compelled disclosure of truthful, factual information about a product to consumers draws favorable review.” Because “the First Amendment’s protection of commercial speech lies in the speech’s value to consumers,” he concluded, “there is only a ‘minimal’ interest in resisting disclosure of product information to the public.” The D.C. Circuit denied en banc review.

In Arpaio v. Obama, the court held that an Arizona sheriff lacked standing to challenge the president’s deferred action policies for undocumented immigrants (DACA). Arpaio argued that DACA would increase crime rates in his state, which would in turn demand greater resources from law enforcement – an injury that he argued created Article III standing to sue the administration. Srinivasan joined an opinion written by Judge Cornelia T.L. Pillard, in which the panel held that Arpaio “failed to allege an injury that is both fairly traceable to the deferred action policies and redressable by enjoining them.” That conclusion parallels the administration’s position in United States v. Texas, another immigration case in which the Court will hear oral arguments in April.

Recommended Citation: Thomas Hopson, Potential nominee: Judge Sri Srinivasan, appellate veteran, SCOTUSblog (Mar. 11, 2016, 12:11 PM),