February 16, 2016 at 3:11 pm EST | by Chris Johnson
Potential Supreme Court pick had role in overturning DOMA
Sri Srinavasan, gay news, Washington Blade

Sri Srinavasan is considered a potential replacement for Antonin Scalia on the Supreme Court. (Photo public domain)

The unexpected opening on the U.S. Supreme Court following the death of Antonin Scalia has led to intense speculation over whom President Obama will name to replace him.

One name that tops just about every list is U.S. Circuit Judge Sri Srinivasan, who played a lead role in litigation against the Defense of Marriage Act. The U.S. Supreme Court in 2013 ruled against the anti-gay law, which prohibited recognition of same-sex marriage for the purposes of federal benefits.

Considered a moderate, Srinivasan, after earning his law and business degrees from Stanford University, clerked for former U.S. Associate Justice Sandra Day O’Connor, a Reagan appointee. In 2013, the U.S. Senate confirmed him without controversy by a 97-0 vote to a seat on the U.S. Court of Appeals for the D.C. Circuit.

Prior to his confirmation, Srinivasan, now 48, was principal deputy solicitor general of the United States at the time when litigation against the Defense of Marriage Act was moving through the courts and the Obama administration declined to defend the anti-gay law.

Srinivasan’s name appeared name on legal briefs from the U.S. Justice Department arguing against the constitutionality of DOMA, including the Obama administration’s brief to the U.S. Supreme Court.

“Section 3 of DOMA targets the many gay and lesbian people legally married under state law for a harsh form of discrimination that bears no relation to their ability to contribute to society,” the brief says. “It is abundantly clear that this discrimination does not substantially advance an interest in protecting marriage, or any other important interest. The statute simply cannot be reconciled with the Fifth Amendment’s guarantee of equal protection.”

Because the Obama administration agreed with lower courts that DOMA is unconstitutional, there was a question over whether the Supreme Court had jurisdiction to hear the case. Srinivasan was selected to present oral arguments before the court on why it should be able to hear the lawsuit.

Srinivasan argued in March 2013 the court has jurisdiction to review DOMA based on court precedent created in INS v. Chadha, an immigration-related case that came before the court in 1992. Srinivasan also said the U.S. government still suffers aggrievement, which allowed the Justice Department to appeal the case.

“The reason that the government appealed in this case is because the president made the determination that this statute would continue to be enforced, and that was out of respect for the Congress that enacted the law and the president who signed it and out of respect for the role the judiciary in saying what the law is,” Srinivasan said. “The point of taking an appeal here is that the government suffered an injury because a judgement was entered against the government in the court of appeals. That’s a classic case for injury.”

During his confirmation hearing before the Senate Judiciary Committee in spring 2013 after Obama nominated him to serve on the judiciary, Sen. Charles Grassley (R-Iowa) asked Srinivasan about his views of the constitutionality of DOMA, but he kept his cards close to the vest.

“My personal views have never been relevant to positions I have taken on behalf of a client, and they would certainly not be relevant to any of my jobs, my fulfillment of my responsibilities were I fortunate enough to be confirmed,” Srinivasan said.

Under questioning from Sen. Orrin Hatch (R-Utah) on the Obama administration’s decision to stop defending DOMA, Srinivasan pointed out that determination was made in 2011 before he took a job in the Justice Department.

In addition to his role in overturning DOMA, Srinivasan also has a distinctive personal story. A native of India, Srinivasan as a youth immigrated with his family in the late 1960s to Kansas, where he attended high school and played on the school basketball team.

It remains to be seen whom President Obama will nominate to serve on the Supreme Court. Any nominee will likely face difficulty in a presidential election year with Republicans in control of the U.S. Senate. Senate Majority Leader Mitch McConnell (R-Ky.) has already said the next president should pick the nominee and U.S. Sen. Ted Cruz (R-Texas) has pledged to filibuster any nominee Obama puts forth for the position.

During a news conference in Rancho Mirage, Calif., Principal Deputy White House Press Secretary Eric Schultz said he doesn’t anticipate an announcement this week with the Senate still in recess.

“But as soon as the Senate returns, the president was very clear that he is going to fulfill his constitutional responsibility to nominate a successor to Justice Scalia and he also called on the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote,” Schultz said.

Schultz declined to go into potential names of nominees, but urged observers to look at the two other justices Obama named to the Supreme Court — U.S. Associate Justices Sonia Sotomayor and Elena Kagan — to get an idea of what the president seeks in a judicial appointment.

Srinivasan is but one of several names mentioned in the media as potential successors to Scalia. Others are U.S. Ninth Circuit Judge Paul Watford, who would add another black voice to the court; U.S. Eighth Circuit Judge Jane Kelly, who was unanimously confirmed by the Senate; U.S. Attorney General Loretta Lynch; Sen. Amy Klobuchar (D-Minn.); and U.S. Chief Judge Merrick Garland of the D.C. Circuit, who’s considered more appealing to Republicans because he’s a moderate and older at 63.

Another name mentioned is Colorado Supreme Court Chief Justice Monica Marquez, a lesbian. Her confirmation would make her the first openly LGBT justice on the Supreme Court.

Jarod Keith, a spokesperson for the Gay & Lesbian Victory Fund, said he hopes an openly LGBT person is on Obama’s short list as a potential Supreme Court pick.

“The U.S. Supreme Court has arguably been the most consequential government body for advancing LGBT rights, and it’s past time that LGBT people are represented on the court,” Keith said. “Opportunities to nominate a new justice don’t come often, and I hope President Obama will seriously consider naming and openly LGBT nominee.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

3 Comments
  • Yeah! Except…

    Umm, isn’t Srinivasan’s skin color kinda dark? I mean really, really dark– like our Kenyan president– and Attorney General Lynch? How do we know he’s not part Kenyan, too?

    In Mitch McConnell’s U.S. Senate, doesn’t that automatically require 5 or 6 months of slow review? And passing a literacy test in Latin– or something?

    Before you know it, McConnell’s Senate will have to recess for the summer national party nominating conventions.

    Then … oops! There it is! The “Thurmond Rule” kicks in and the McConnell Senate will just have to wait for President Trump to pick a Scalia replacement.

    Sound like a plan, Republicans?

  • Schooled by Sandra Day O’Connor born in India? The country is going to the snakes……oh, wait, they charm them.

  • I nominate Chelsea Manning who can be counted on to vote against the torture, warmongering and the mass murder of civilians that characterize the regimes of the Bushes, the Clintons and Obama.

    https://www.youtube.com/watch?v=MqDczyHmxgc

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