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

By MARSHA MERCER

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 cnn.com. 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 4^th 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.

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Let the sun shine in Supreme Court -- Jan. 8, 2015 column

By MARSHA MERCER

The Supreme Court is poised this year to make momentous rulings – on the future of the Affordable Care Act, pregnant workers’ rights on the job and, probably, same-sex marriage.  

If you want to see the court in action, though, you’ll have to be present – just as when everybody wrote with a quill pen. Speaking of which, white quills are still set out on counsel tables every day the Supreme Court is in session – a nice touch for the lawyers arguing cases.

But citizens of the 21^st century shouldn’t have to journey to Washington to see justice.

After all, millions of Americans watch the Super Bowl without having to travel, Rep. Steve King, R-Iowa, said last month at a hearing of the House Judiciary subcommittee on courts. Most people watch the game on TV -- a technology that was cutting edge 60 years ago.

The hearing was on the proposed Sunshine in the Courtroom Act, a perennial, bipartisan effort to open the Supreme Court and lower federal courts to television cameras.

Republicans and Democrats in the House and Senate as well as C-SPAN and media and legal organizations have tried unsuccessfully for decades to persuade the Supreme Court to televise its proceedings.

C-SPAN, which began covering the House of Representatives in 1979 and the Senate in 1986, first made a request to cover oral arguments to Chief Justice William Rehnquist in 1988.

Chief Justice John G. Roberts Jr. dashed hopes that the court might relent in 2015 in his year-end report on the federal judiciary, released on New Year’s Eve. He didn’t mention cameras, but he did stress that the court shouldn’t embrace technology too quickly.

“The courts will often choose to be late to the harvest of American ingenuity,” he wrote. His goal is to make legal briefs and other filings available online “as soon as 2016.”

Roberts’ report prompted criticism from the incoming chairman of the Senate Judiciary Committee.

“The courts have yet to embrace the one technology that the founders likely would have advocated for – cameras in the courtroom,” Sen. Chuck Grassley, R-Iowa, a longtime proponent of televising court proceedings, said in a statement.

“The founders intended for trials to be held in front of all people who wished to attend. The First Amendment supports the notion that court proceedings be open to the public and, by extension, the news media and broadcast coverage, the same way CSPAN opened Congress to the public,” Grassley said.

Every state allows TV coverage of courts, and some federal courts do too. The Supreme Court releases written transcripts and audio recordings of oral arguments, sometimes the same day.  

Independent organizations, including SCOTUSblog, blog arguments and opinions live as they happen. The court allows sketch artists. But cameras? No way.   

Justice David Souter quipped in 1996 that cameras would roll into the courtroom over his dead body.  Souter has since retired. Justice Anthony Kennedy has said the court should not become part of the “national entertainment network.” Justice Clarence Thomas has said his colleagues on the court would lose their privacy.

Justices fear that the public wouldn’t understand the court’s arcane proceedings, that lawyers might grandstand and that soundbites would wind up out of context on the news and late-night TV. 

A lot of that already happens. Ordinary citizens, kept at arms’ length, have to rely on pundits who offer flamboyant interpretations. If people could see the action for themselves, they would get a more measured view.

Interestingly, nominees to the court often approve of cameras but as justices favor keeping the door shut. For example, Elena Kagan said in her confirmation hearing in 2010 that she thought cameras in the courtroom would be “terrific.”

“I think it would be a great thing for the institution, and more important, I think it would be a great thing for the American people,” she said.  A couple of years later, though, Justice Kagan had cooled to the idea, saying she had “a few worries” about cameras.

Even if Congress were to pass the Sunshine in the Courtroom Act, you still might not be able to watch the Supreme Court from your den.  The act authorizes the chief justice and judges in lower courts to allow cameras but it doesn’t require them to do so. The court could still say no.

For the foreseeable future, if you want to see the court, you’ll need to saddle up for the trip to Washington – and that’s unjust.    

© 2015 Marsha Mercer. All rights reserved.

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