Thursday, February 18, 2016

For the court: `someone smart' -- Feb. 18, 2016 column


Nearly everybody has advice for President Barack Obama about the Supreme Court vacancy caused by the sudden death of Justice Antonin Scalia, even Scalia himself.

Scalia, although a Harvard Law grad, was a fierce critic of the Harvard-Yale axis on the court and the narrow range of background and experience of the justices whose opinions shape American life.

This court “consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School.” Four are natives of New York City, eight grew up in east- and west-coast states, he wrote last June in a dissent in the same-sex marriage case.

“Only one hails from the vast expanse in between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination,” said Scalia.

All the justices are either Jewish or Roman Catholic. Justice Clarence Thomas, a former Baptist who’s now a Catholic, joined Scalia, also Catholic, in the dissent.

Scalia’s astringent dissents – he was often in the minority – won him many fans in law schools, where he loved to lecture, debate and counsel students. Known for his wit and intellect, he was a popular professor at the University of Virginia from 1967 to 1974. 

He had hired six U. Va. law grads as his clerks in the last 10 years, helping build a path for a new generation to the highest court. A Supreme Court clerkship is often a stepping stone to becoming a federal judge and even a Supreme Court justice.

Obama says he will nominate someone with “an outstanding legal mind” to replace Scalia. The president likely will remember Scalia’s advice after Justice David Souter announced his retirement in 2009. 
“I hope he sends us someone smart,” Scalia told David Axelrod, then Obama’s senior adviser, at the White House Correspondents Dinner.

Surprised by Scalia’s overture, Axelrod replied that he was sure the president would do so, he recalled this week in a commentary he wrote for But Scalia persisted.
“`Let me put a finer point on it,’ the justice said, in a lower, purposeful tone of voice, his eyes fixed on mine. `I hope he sends us Elena Kagan,’” Axelrod wrote.

Axelrod was shocked that the court’s leading conservative would propose a liberal for the court. But Kagan and Scalia shared “intellectual rigor and a robust sense of humor,” Axelrod explained, “And if Scalia could not have a philosophical ally in the next court appointee, he had hoped, at least, for one with the heft to give him a good honest fight.”

That time, Obama chose Sonia Sotomayor, the first Hispanic justice. The next year, though, when Justice John Paul Stevens retired, the president did choose Kagan.

To expand the court’s horizons this time, Obama may nominate someone whose name is unfamiliar to many Americans: Sri Srinivasan (SREE SREE-nee-vah-sun), a federal appeals court judge.

Srinivasan, 48, is known for his outstanding legal mind, his collegiality and his open-mindedness. He was born in India, emigrated to the United States as a young child and grew up in Kansas.

A graduate of Stanford University with three degrees, he clerked for 4th U.S. Circuit Court of Appeals Judge J. Harvie Wilkinson III in Richmond, Va., and Supreme Court Justice Sandra Day O’Connor. Wilkinson, a Reagan appointee, has called him “lightning smart.”

The Senate unanimously confirmed Srinivasan to the D.C. Circuit in 2013. He won  kudos from Republicans and Democrats, although he drew liberal opposition for representing Exxon Mobil and Enron CEO Jeffrey Skilling.

As a law clerk in Richmond, Srinivasan and fellow law clerk Ted Cruz, became friends. Senator Cruz praised and voted to confirm Srinivasan in 2013 but said Wednesday that if Obama nominates him for the nation’s highest court, he will not vote for him.

Cruz wants the election to be a referendum on the court. That’s politics.

Srinivasan would be the first justice from South Asia, the first Hindu on the Supreme Court and the first justice born outside the United States since Felix Frankfurter served from 1939 to 1962.

Yes, Mister President, send “someone smart.”

©2016 Marsha Mercer. All rights reserved.



  1. Marsha, I have heard and seen a lot about this question, pages and pages and hours and hours, but your assessment of the choices open to Obama for a nominee is exactly right and to the point. Now I know all I need to know and I can stop trying to find out what's happening. Thank you!