ADVISE AND CONSENT

Meet potential Obama nominee Sri Srinivasan, who could be the first Asian-American on the Supreme Court

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For Salman Abuelhawa, six phone calls almost meant decades in prison. After he was caught buying a small amount of cocaine, federal prosecutors said Abuelhawa had violated a law about using a “communications facility” to facilitate drug sales. In other words, he had called his drug dealer on the phone. A judge had convicted him of a felony for each phone call to the dealer, even though small drug buys are only misdemeanors.

Those felonies meant Abuelhawa, a Palestinian immigrant who had been in the U.S. for decades, faced 24 years behind bars and a possible deportation.

An appeals court rejected Abuelhawa’s appeal of his conviction. In March 2009, he had his last chance: oral arguments in front of the Supreme Court. Sitting in the Court’s ceremonial chambers, Abuelhawa watched as his pro bono lawyer, an immigrant like himself named Sri Srinivasan, deftly parried the nine justices’ questions. The law, Srinivasan explained in an affable midwestern accent, wasn’t intended to penalize low level offenders so harshly.

Two months after that oral argument, the Supreme Court unanimously decided in Abuelhawa’s favor. He received only a misdemeanor, and was allowed to stay in the U.S. with his family. “Sri helped me believe that the system works,” Abuelhawa told me in an email. “My life reopened and I have had the opportunity to be a father to my three children.”

Now, Srinivasan, 48, may have a chance to join the Court he argued in front of. He is near the top of a shortlist of President Obama’s potential nominees to the Supreme Court after the unexpected death of Justice Antonin Scalia last weekend. Srinivasan, who emigrated from India to Kansas at a young age, would be the first Asian-American and Indian-American Supreme Court justice, and the first immigrant on the Court in more than 50 years.

As a lawyer in private practice and for the federal government, Srinivasan has argued 25 cases in front of the Supreme Court. He now serves as a judge on the U.S. Court of Appeals for the D.C. Circuit, which is seen as the second most important court in the country. Scalia and three other Supreme Court justices served on that court before being nominated. Lawyers in the insular world of the Supreme Court bar say Srinivasan is one of the most talented litigators of his generation; the New Yorker called him a “Supreme Court nominee-in-waiting.”

The Republican-controlled Senate has vowed to block any nominee Obama puts forward. But the fact that the Senate confirmed Srinivasan 97-0 for his judgeship in 2013 might suggest that, if nominated, he would have a chance of winning GOP support. At Srinivasan’s confirmation hearing in April 2013, Sen. Ted Cruz noted that “we have been friends a long time.” Sen. Orrin Hatch, now the chamber’s most senior Republican, called him “terrific” and added “I do not believe judges should be filibustered.”

Despite Srinivasan’s stellar credentials and bipartisan appeal, his views on some of the most hotly contested issues in front of the Court—from the Citizens United campaign finance decision to affirmative action in college admissions—remain a mystery. And some observers think Obama is more likely to choose a more liberal nominee.

In some ways, Srinivasan is the anti-Scalia. In his legal arguments and personality, colleagues say, he’s not ideological, flashy, or fiery. Instead, he’s centrist, humble, and even-tempered.

“He’s never the loudest or the most talkative in the room… he’s not a pound your fist on the lectern type,” said Pratik Shah, a lawyer who’s worked on some of the same cases as Srinivasan. “He has the temperament that really could make him a true consensus-builder on the Court, someone who justices from across the spectrum would listen to.”

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Sri Srinivasan, with his twins Maya and Vikram, at his judicial Senate confirmation hearing in 2013.

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.

During his 2013 confirmation hearing, he deftly dodged questions about his beliefs, noting that “my personal views do not play a role in the positions I advance on behalf of my clients.” Like many judicial nominees, he demurred when asked about potential cases, instead explaining the current precedents.

A review of Srinivasan’s legal opinions in the two and a half years since he joined the D.C. circuit also doesn’t hold many clues for how he would rule on some of the hot button issues if he joined the Supreme Court. His writing is clear and measured, without the rhetorical flourishes or entertaining asides that characterize Scalia’s work.

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.”

Srinivasan didn’t respond to a request for an interview; I’ll update if I hear back.

Srinivasan now lives in Arlington, Va. with his wife Carla Garrett, also a lawyer, and their teenage twins, Maya and Vikram. Outside the courtroom, he’s known as a rabid fan of the University of Kansas Jayhawks basketball team. “I’m not sure you want to be in the same room as him if Kansas happens to be losing,” said Irv Gornstein, another former colleague.

He was born Padmanabhan Srikanth Srinivasan in Chandigarh, India in 1967 and moved with his family to Lawrence, Kansas a few months later. His father, who had previously studied at U.C. Berkeley on a Fulbright, was a math professor at Kansas University; his mother taught art history and later computer science. His sister Srinija was the fifth employee to join Yahoo.

Srinivasan isn’t the only Asian-American or immigrant who’s been talked up as a potential Obama nominee for the Court. There’s also Jacqueline Nguyen, an appeals court judge who once lived in a refugee camp with her Vietnamese family, and Goodwin Liu, a Taiwanese-American justice from Georgia on the California Supreme Court. Mariano-Florentino Cuéllar, a Mexican immigrant who is also on the California Supreme Court, is another potential option. But of these, experts say, Srinivasan is the likeliest choice. (There are of course a number of potential nominees who are not immigrants—here’s a longer list.)

In total, there have been just five immigrants on the Court, and only two who served in the last 200 years. Felix Frankfurter, who was from Austria-Hungary, last sat on the bench in the early ‘60s.

The number of Asian-American federal judges has more than tripled in the last decade, from eight to 25, thanks mostly to Obama’s nominations. But there’s never been an Asian on SCOTUS. “It’s time for America to achieve that historic first,” said Jin Hwang, the president of the National Asian Pacific American Bar Association. “The reason why it’s important to have judges who look like the population is it instills more confidence in the justice system… People can feel more a part of society and not be considered a perpetual foreigner.”

In several high-profile cases, Srinivasan represented immigrants pro bono. In addition to the Abuelhawa case, he also represented a Mexican immigrant who was going to be deported for a drug crime. The Court unanimously agreed with Srinivasan and held that minor drug offenses are not grounds for routine deportation. “We thought it would be a relatively close case, but Sri’s advocacy was sensational,” Gornstein said. “I remember thinking that Justice Alito asked one or two of the hardest questions I had ever heard, and Sri’s answers to that settled the whole court in his favor.”

He also represented a group of Spanish-speaking families in Nogales, Arizona who sued state schools officials to try to get more funding for English language learner programs; the Supreme Court ruled narrowly against his side.

In a speech to an Indian-American group in 2014, Srinivasan talked about his role as a judge administering the oath of citizenship to naturalizing citizens—the same oath he once took with his family to become a U.S. citizen. Participating in those naturalization ceremonies, he said, is “one of the most moving” experiences of his life.

“What a profound privilege to go from one who took the oath from a judge to one who now is in a position to administer the oath as a judge,” he said.