Trump supporters knew early on that they were not voting for an ideologue. But they did have an expectation that he would appoint judges to the U.S. Supreme Court who held a certain ideological bent – that is, conservative. And, in fact, he promised them as much. But there is one judge that could jeopardize that hope.
The Washington Examiner reports that President Trump believes he will have an opportunity to appoint a total of five justices to the Supreme Court, which could set up a lasting conservative majority on the court well past 2050.
With the current makeup of the Court being collectively older than any other on record, the possibility of Trump being able to pack it with three to four more judges is not a crazy notion.
According to a new report, the average age of justices who leave the Supreme Court is 79. Justice’s Ruth Bader Ginsburg, Anthony Kennedy and Stephen Breyer are 84, 80 and 78, respectively.
“Justices Kennedy and Breyer are close to the age when justices typically leave the court, and Ginsburg, who turned 84 last month, is already among the oldest justices ever to hold the position,” writes Bloomberg’s David Ingol. “Kennedy has been viewed as the so-called swing vote on the court, and Breyer and Ginsburg have been stalwarts of the court’s liberal wing. Trump could dramatically shift the court’s ideology to the right for decades to come if he were able to replace them with conservative judges.”
If Trump is reelected in 2020, Justice Clarence Thomas, 68, a staunch conservative, might also be convinced to step down during the president’s second term. This would allow Trump to appoint another younger conservative to the Supreme Court before he leaves office. Thomas is the court’s second-longest-serving justice, already having served more than 25 years.
This list is definitive and I will choose only from it in picking future justices of the United States Supreme Court.
During the election, then-candidate Trump released a list of 11 conservative judges that he announced would be used “as a guide” to nominate future Supreme Court justices. A few months later, he released a second list of 10 additional judges, which were added to his original list, and stated that “this list is definitive and I will choose only from it in picking future justices of the United States Supreme Court.”
In a Facebook post, Sen. Ted Cruz, one of Trump’s chief opponents and toughest critics in the GOP primaries, announced his decision to vote for Trump because of his commitment to choose only from these lists.
“For some time, I have been seeking greater specificity on this issue, and today the Trump campaign provided that, releasing a very strong list of potential Supreme Court nominees,” Cruz wrote. “This commitment matters, and it provides a serious reason for voters to choose to support Trump.”
Conservatives have now regained a 5-4 majority on the Supreme Court with Justice Neil Gorsuch on the bench. And because Senate Republicans triggered the “nuclear option,” it will be much easier in the future for Trump to have his appointees confirmed in a swift, undramatic fashion.
That brings us to Sri Srinivasan.
U.S. Court of Appeals judge Srikanth Srinivasan, who goes by Sri, was born in India and grew up in Lawrence, Kansas. In 2013, he won confirmation to the United States Court of Appeals for the District of Columbia Circuit by a vote of 97–0 – just one shy of the 98-0 vote count that Antonin Scalia received. Srinivasan took his oath of office on the Bhagavad Gita, a Hindu sacred scripture.
Srinivasan started out as a law clerk for former Supreme Court Justice Sandra Day O’Connor, who was nominated by President Ronald Reagan. O’Connor gave her wholehearted endorsement of Srinivasan at the time of his nomination to the D.C. circuit court, telling The New Yorker that he would make a “wonderful choice.”
Prior to his nomination by Obama to the Court of Appeals, Srinivasan was principal deputy solicitor general of the United States. He argued 25 cases before the Supreme Court, both under President George W. Bush and Obama.
Chris Coons, a Democratic member of the Senate judiciary committee, described him as “balanced” and “capable.” Doug Kendall, president of the liberal Constitutional Accountability Center, said Srinivasan was “unquestionably brilliant,” but acknowledged that Srinivasan’s record “is not progressive-forward; it is as non-ideological as you can find.” Former President Barack Obama, who appointed Srinivasan to the D.C. circuit court, lionized him as “a trailblazer who personifies the best of America.”
Professor Jonathan Turley, a nationally recognized legal scholar, had called Srinivasan a “grand-slam” pick for the Obama administration to fill the seat of the late Justice Scalia. He described Srinivasan as a “moderate” and wrote that Srinivasan would present one of the “smallest targets” for conservatives. Turley also testified in favor of Neil Gorsuch’s confirmation at his Senate hearing in March.
At Srinivasan’s confirmation hearing, Sen. Ted Cruz, a hardline Constitutional conservative, spoke about the friendship he had developed with the judge dating back to their time together as law clerks in the U.S. appeals court based in Richmond, Virginia.
“We have been friends a long time, so I am hopeful that our friendship will not be seen as a strike against you by some,” Cruz quipped.
Last year, Reuters reported that Cruz said Srinivasan had done a “very fine job” in answering the questions posed to him by the Senate committee.
This is especially notable considering Cruz asked Srinivasan some rather pointed questions at the time regarding judicial activism, the Constitution and judicial interpretation.
“How would you define ‘judicial activism’?” Cruz asked.
“To me, what it means is the injection of personal views into judicial decision making, and it is something that judges obviously ought not do, and it is something that certainly I would strive not to do and I believe would not do,” Srinivasan answered.
Accepting that response, Cruz followed up by asking what role Srinivasan believes “originalism” should play in a judge’s interpretation of the Constitution.
“Senator, I would be guided by Supreme Court precedent on the application of originalism, and we have certainly seen originalism of sorts applied in a variety of contexts by the Court, and the Heller opinion is an example of that. I think Crawford may be another example of that. And I would be guided by those precedents and would faithfully adhere to them if issues of that variety were to come before me if I were to be confirmed,” Srinivasan responded.
Finally, Cruz tried to nail Srinivasan down on the view held by some that the U.S. Constitution is a “living document.”
“Do you ascribe to the concept of a ‘living Constitution’?” Cruz asked.
“I would say no, that the Constitution has an enduring fixed quality to it. And it is one of the geniuses of the Constitution. And I would certainly view the task of constitutional interpretation in that way,” Srinivasan answered.
When Justice Antonin Scalia died, President Obama quickly moved to nominate someone to replace him on the Court. The day before Obama announced his pick, the International Business Times reported that the president had narrowed down his list of potential nominees to Merrick Garland and Sri Srinivasan.
Robert Reich, a radical progressive professor at the University of California at Berkeley, posted on Facebook last year that his “mole in the White House” was telling him that Obama would choose Srinivasan. Perhaps perturbed, Reich asked his followers “but is Srinivasan progressive?” After attempting to answer his own question, Reich declared that his suspicion is “Obama couldn’t do better than Srinivasan. No other nominee will get a majority of Senate votes.”
Readers at SCOTUSblog, a law blog written by lawyers, law professors and law students about the Supreme Court of the United States, were asked to predict who they thought Obama would choose as his nominee from a list of several likely candidates. Poll respondents voted overwhelmingly for Srinivasan (53 percent); Garland came in dead last (7 percent).
Two days later, President Obama appointed Merrick Garland.
As moderate a judge as Republicans could expect a Democratic president to nominate.
The publisher of SCOTUSblog, Tom Goldstein, closely examined 119 of Srinivasan’s rulings. In his assessment, he concluded that Srinivasan’s “votes and opinions do not reflect any strong ideology.” He added that Srinivasan appears to be “as moderate a judge as Republicans could expect a Democratic president to nominate.” On polarizing ideological questions, Goldstein claims that Srinivasan would be “likely to lean to the left, but still gravitate towards the center.”
Why then would President Trump consider appointing Srinivasan to the Court? I’ve identified three reasons why he may be persuaded to make such a move.
1. To make history
Trump has long been criticized by his opponents for being “racist.” They point to his comments directed at the Kahn family, his remarks about a Mexican judge being “biased,” his claims about Obama’s origin of birth and his immigration ban as evidence to back up their allegation. For the record, his supporters vehemently repudiate this accusation. But by attaching Trump to such a negative and derogatory term, his detractors have effectively painted him, in the eyes of some, as exactly that – a racist.
For Trump to dispel these charges, he must show the minority and immigrant communities that he is exactly the opposite. A good way to begin that process would be to appoint the first Indian-American and first Hindu to the high court. In fact, in a profile piece by The New Yorker, Jeffrey Toobin theorized that Srinivasan was the “frontrunner” on President Obama’s shortlist of future Supreme Court appointees, due in no small part to the fact that Obama would be “making history” by appointing the first Indian-American Justice.
Trump could neutralize the mudslinging by appointing Srinivasan. And in an ironic twist, he would go down in history as the president who appointed the first Indian-American Justice – an enticing one-up on his predecessor.
2. To gain leverage
In the past, Justice Ginsburg has suggested that she would like to serve at least as long as former Justice Louis Brandeis. Brandeis retired at 82; Ginsburg turned 84 in March.
“Yeah, sometimes I say, Brandeis was appointed at about the same age I was, when he was sixty. And he stayed twenty-two, twenty-three years, so I said I expected to stay at least as long,” Ginsburg told The New Yorker in a 2013 interview.
With Ginsburg nearing retirement, Trump could appoint an intellectual moderate – like Srinivasan – to replace her. Conservatives would maintain the 5-4 majority, be able to appoint conservative justices to replace Justice Breyer and Kennedy and gain leverage over the liberal wing of America.
To make a move like this, Trump would have to receive some sort of guarantee from Democrats that they would not filibuster or block his future nominees. If he was successful in coaxing such an agreement out of them, he could then move past partisan politics by advising the Senate to put the “nuclear option” back on the shelf. This would allow President Trump to fulfill his promise of being a “unifier.”
For conservatives, this idea is not exactly appealing. It would require a whole lot of spin to convince them that this move is in their best interest. And, in the end, it may not be.
Conservatives will argue that if Hillary Clinton had won, she would have unmercifully appointed liberal activist judges to the Court, which would have tilted the court to the far-left for decades to come. True, and true. In their eyes, this is an opportunity to swing the court back to the right – something that has eluded them since the 1930s.
But does Trump want to go down solely as a hero of the Right, or as a hero for all of America? Recent changes in the West Wing indicate that Trump is beginning to take on a more centrist mentality. Trump has shown he is willing to work with Democrats if conservative Republicans don’t cooperate with him.
If Trump believes that he can pick up a win on his agenda by teaming up with Democrats or by making conciliatory Supreme Court picks, it is possible he will do so. Trump must tread carefully here to persuade Democrats and liberals, while also not alienating the Republicans and conservatives who put him in the Oval Office.
3. To appease others
Political Scientist Harold Lasswell defined “politics” as involving questions as to “who gets what, when, and how.” This evaluation of politics is exactly the corruption in Washington, D.C. that Donald Trump campaigned against and promised to “drain.”
But it is important to recognize that there are many special interests at play here, and a few of them could have a direct impact on Trump’s next Supreme Court appointment.
Shalabh Kumar, a Chicago-area manufacturing tycoon, raised some eyebrows when he emerged as one of Trump’s most loyal financial backers. Kumar, in an interview with Jonathan Swan at The Hill, said he was so impressed by Trump when they first met that within 24 hours he had donated nearly half a million dollars to his campaign.
“That’s just a start. That’s the seed money,” Kumar told The Hill.
And boy, he wasn’t kidding. Kumar contributed about $1.5 million to Trump’s victory fund and another $3.5 million to political action committees and the Republican National Committee. Last July, he vowed to raise $10 million for the campaign, through individual donations, fundraisers and rallies. Kumar has been called “the most powerful Indian in Donald Trump’s America” by Indian media. Trump himself has introduced Kumar as the “richest Indian” in America.
Asian Americans are a coveted voter block for both Republicans and Democrats. As their numbers continue to increase in the overall electorate, expect to see both parties ramp up their outreach to these communities.
“Asian Americans and Pacific Islanders (AAPIs) are increasingly poised to shape U.S. elections,” writes Fusion’s Steph Yin. “For two decades, they’ve been the nation’s fastest-growing racial group and one of its fastest-growing electorates. By 2040, one in every 10 Americans will be AAPI, and the number of AAPI voters will double to 12 million.”
A lot of people think that Trump is somewhat of a racist. His partnership with the Republican Hindu Coalition will set that aside.
As the founding chairman of the Republican Hindu Coalition (RHC), Kumar claimed after the election that his organization helped swing 25,000 votes for Trump in key battleground states like Florida and Ohio, per Breitbart News.
Kumar also believes Trump’s association with the RHC will help him quell accusations by his opponents that he is “racist.”
“A lot of people think that Trump is somewhat of a racist,” Kumar said. “His partnership with the Republican Hindu Coalition will set that aside.”
Kumar, who was a Democrat before being convinced by former President Ronald Reagan to become a Republican, now advocates on behalf of conservative causes. But this transformation hasn’t stopped him from tweeting out his support for Hindu Democrats.
It is yet to be seen how much sway Shalabh Kumar and the Republican Hindu Coalition has over President Trump, but it is noteworthy that one of the first judges nominated by Trump to a federal court was Amul Thapar, an Indian-American district judge. Despite having less judicial experience than Srinivasan, Thapar was included on Trump’s second list of potential Supreme Court picks last September.
And then there are liberal lobbying groups like Democracy for America, Common Cause and People for the American Way that allied themselves with the White House last spring, in a coordinated effort to try and force Merrick Garland’s nomination through the Republican-controlled Senate.
It is unlikely that President Trump will offer the ultimate olive branch to liberals by renominating judge Merrick Garland; however, appointing Srinivasan, the judge whom President Obama nearly chose, would be quite the peace offering.
The case against Sri Srinivasan…
In 2013, well-known lawyers and former U.S. Solicitors General Paul Clement, Ted Olson, Ken Starr and Donald Ayer, as well as others, signed a bipartisan letter to the Senate Judiciary Committee endorsing Srinivasan for his appointment to the D.C. circuit court. In the letter, they praised Srinivasan for having “a first-rate intellect, an open-minded approach to the law, a strong work ethic, and an unimpeachable character.” They also described Srinivasan as a “terrific oral advocate and a gifted writer” and “one of the best appellate lawyers in the country.”
And while they attest to his ability to take a case “where the facts and the law lead him” and note that “he does not take shortcuts or cut corners,” one glaring omission from their letter is any use of the word “Constitution.”
“I don’t have an overarching, grand unified judicial philosophy that I would bring with me to the bench,” Srinivasan told senators at his 2013 senate confirmation hearing.
Unfortunately, that is hard to verify because Srinivasan does not have an extensive record of judicial opinions to pick through and analyze. Srinivasan has only been a judge for about six years; prior to that, he was a litigator. And after joining the D.C. circuit court, in many instances, he sided with the Obama administration on EPA policies, climate change rulings and environmental suits.
Politico reported that Srinivasan joined with two other judges in 2014 to say EPA had gone too far with a rule that eased some state deadlines for ozone compliance – a ruling that sided with environmental groups. And in another ruling, he allowed for environmentalists to sue to seek historical protections that would block mining on a West Virginia mountain. He was also criticized by conservative groups for his decision not to grant emergency relief to power companies seeking to halt the Obama administration’s Clean Power Plan.
To put it simply, we just don’t know enough about Judge Srinivasan. While he may appear to be moderate to some, others have serious doubts that he would veer to the left if he was given a lifetime appointment to the Court. And for Srinivasan – who is only 50 years old – it would feel like a lifetime.
“The party that is first to figure out how to appeal to the muddled middle without alienating its convinced core is the party that is most likely to flourish in the future,” writes Morton Keller at The Atlantic.
Sometimes a hard choice requires sacrifice. My only hope is that President Trump realizes that offering a seat on the Supreme Court for political purposes is too great of a sacrifice. My gut tells me Trump understands this, but we won’t know for sure until it comes time to make the hard choice.
Trump campaigned on big promises – he laid out many of these promises in his “Contract with the American Voter.” One of his most publicized promises was his vow to pick future Supreme Court justices exclusively from his list of 21 judges. According to a Gallup poll, a majority of Americans think Trump keeps his promises. It would be a terrible disappointment to many Americans if President Trump were to break this promise.