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Battle over judicial appointments approaches crucial point

Although it was overshadowed this week by the maneuvering over background checks of gun buyers, President Barack Obama’s nomination of Sri Srinivasan to serve on the federal appeals court in Washington will likely end up being more important in the long run. 

Srinivasan, who delivered a sure-footed performance during his confirmation hearing before the Senate Judiciary Committee Wednesday, is on the verge of getting lifetime tenure on the U.S. Court of Appeals for the District of Columbia Circuit, the nation’s most powerful appeals court – a court that Judiciary Committee chairman Sen. Patrick Leahy said recently “is more important than the Supreme Court because on so many of the issues that go there, they will have the final word.” It’s the end of the road for most cases since the Supreme Court accepts only a fraction of the requests for appeals.

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The court on which Srinivasan would serve decides whether regulations on energy and environmental policy, campaign finance, labor law, and other matters stand or fall. The court also decides appeals from detainees held at Guantanamo Bay.

Obama’s legislative agenda may not get far this year, which makes his regulatory agenda -- and the court that decides its fate – even more crucial.

With life tenure, Srinivasan, who is 46 and who now serves as Deputy Solicitor General, would be voting to uphold or strike down regulations long after Leahy and many other senators have left the Senate.

So far Obama hasn’t gotten to appoint anyone to the D.C. circuit appeals court which is now divided between four judges appointed by Republican presidents and three judges appointed by Bill Clinton. (There are also six senior judges with a reduced workload who take part in some cases.) The court has four vacancies and Senate Majority Leader Harry Reid said Tuesday that Obama will soon be sending the Senate three more nominees to the court.

Last month Republicans blocked a confirmation vote on Obama’s nominee Caitlin Halligan – and if they block a vote on Srinivasan it could spark a historic battle over changing Senate rules – the so-called “nuclear option” – to ban filibusters of judicial nominees. A rules change would allow confirmation of a nominee by 51 votes, rather than the 60 which the filibuster in effect requires.

Sen. Charles Schumer, D- N.Y., said Republicans had blocked Halligan “because they wanted to see the D.C. Circuit empty until they could get nominees more to their liking…. The hard right wants to use the D.C. Circuit to undo all kinds of government decisions”–including environmental regulations, he said.

Referring to the bipartisan Gang of 14 accord in 2005 in which senators vowed to not filibuster judicial nominees except in undefined “extraordinary circumstances,” Sen. Sheldon Whitehouse, D- R.I., told the committee that “the Gang of 14 agreement has now been broken and that opens the door, as far as I’m concerned, to the nuclear option.”

If Democrats don’t find a way to overcome GOP delays and filibusters, Obama’s nominees will “go into a hostage pool” on the Senate floor and “they become pawns in other (political) struggles,” Whitehouse said.

But Srinivasan’s nomination does not look to be the one on which Republicans and Democrats will fight the ultimate filibuster battle.

His credentials are sterling – he served as a law clerk to Justice Sandra Day O’Connor and has done tours of duty in the solicitor general’s office during both the Bush administration and the Obama administration. He has been endorsed by former Bush solicitor general Paul Clement and former Solicitor General and D.C. Circuit judge Kenneth Starr.

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As a witness Wednesday, Srinivasan was deferential, witty, and wise enough to know when to listen and not to talk.

Although he argued part of the Obama administration’s position before the Supreme Court against the Defense of Marriage Act (DOMA) two weeks ago, Srinivasan told Sen. Chuck Grassley, R- Iowa, that the decision to not defend DOMA was made by Obama and Attorney General Eric Holder several months before he began working in the solicitor general’s office. He sidestepped answering a question on DOMA by saying his personal views weren’t relevant and that in event he couldn’t discuss the case because it was pending before the high court. 

Responding to a question posed by Sen. Ted Cruz, R- Texas, Srinivasan said he did not believe in the idea of “a living Constitution” with a meaning that judges change as social conditions change. “The Constitution has an enduring, fixed quality to it,” he told Cruz.

The Texas Republican noted that he’d known Srinivasan for years and that they had both served as law clerks for judges on the Fourth Circuit Court of appeals in 1995-1996.

Alluding to his own unpopularity among Senate Democrats, Cruz told Srinivasan, “We have been friends for a long time – so I am hopeful that our friendship will not be seen as a strike against you by some,” a remark that drew laughter in the hearing room. 

After quizzing Srinivasan, Cruz thanked him “for a very fine job you’ve done today.”

Another Republican on the panel, Sen. Orrin Hatch of Utah, quizzed Srinivasan and then told him, “I think you’re going to make a great circuit court of appeals judge and I intend to support you….”

Hatch said after he left the hearing that he did not expect his GOP colleagues would block a vote on confirming Srinivasan.

And there'd be a risk of alienating some of the nation’s Indian-American population if the Republicans blocked a vote on Indian-born Srinivasan. He’d be the first Asian-American to serve on the D.C. circuit and the first American of Indian ancestry to serve as a federal appeals court judge.

But among Senate Republicans there’s still residual anger over Democrats’ filibusters of President George W. Bush’s appeals court nominees such as Miguel Estrada in 2003 and 2004. Grassley heatedly told reporters after Wednesday's hearing, “We Republicans were stupid in 2005 when we didn’t do the nuclear option…. If we’d done that, Estrada would be on the (appeals) court now and maybe on the Supreme Court. We had seven cloture votes on Estrada," who had "a perfect record. But no, a Hispanic couldn’t be appointed by a Republican (president) -- because he might be on the Supreme Court.”