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Liberal groups drop criticism of potential Obama Supreme Court nominee

Why liberal groups have changed their tune on the judge on every shortlist to replace Supreme Court Justice Scalia.

When President Barack Obama nominated Sri Srinivasan to the D.C. Circuit in 2013, his name was already being floated for a future Supreme Court vacancy, a prospect that made some progressive groups uneasy. They cited uncertainty about the then-principal deputy solicitor general’s politics and his previous representation of corporate clients, including former Enron president Jeffrey Skilling and companies accused of human rights abuses.

But if Obama nominates Srinivasan, a former clerk for Justice Sandra Day O’Connor whose name is often at the top of reported shortlists, to succeed Justice Antonin Scalia on the Supreme Court, such opposition seems far less likely.

In part, that’s because Srinivasan’s short record on the D.C. Circuit, including upholding the Obama administration’s labor protections for home care workers, has assuaged some liberal worries. Privately, progressive legal insiders also say that given that any nominee will be up against fierce Republican opposition to even holding a hearing, organized criticism from the left is unlikely. What’s more, in their minds, anyone who can get confirmed will be better than Scalia.

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“I don’t think you’ll see a real public criticism,” said Caroline Fredrickson, president of the liberal American Constitution Society, referring to the left flank. “The stakes are so high. Scalia was so far to the right on almost everything.”

In 2013, the human rights group Earth Rights International wrote to senators considering Srinivasan’s nomination that in private practice, “Mr. Srinivasan built a practice around defending powerful multinational companies against allegations of human rights abuses such as war crimes, torture, and summary execution. He has been one of the principal architects of a legal strategy intended to secure special exemptions for corporations from liability for serious abuses.”

But more recently, the group has changed its tune. “After evaluating Srinivasan's record on the D.C. Circuit, we've reconsidered our position,” wrote legal director Marco Simons in a blog post after Scalia’s death. “We're not endorsing any candidates for the Supreme Court, but we do not oppose Srinivasan's nomination, although we continue to believe the Senate should receive full information about his work as a government lawyer that may have benefited his former corporate clients.” Earth Rights also said it had renewed its public records request for documents relating to whether Srinivasan had written memos that would benefit those clients while in the Solicitor General’s office.

The post did not mention any particular D.C. Circuit opinion, and Simons did not reply to requests for comment. But a different legal expert pointed to Srinivasan’s dissent in a 2015 case, siding with the government over a business group that objected to labeling minerals free of the conflict in the Democratic Republic of the Congo. 

A 2013 post on the AFL-CIO’s website by the group’s head, Richard Trumpka, raised concerns about Srinivasan on the grounds that “we need judges who understand the issues that working families face in today’s economy. Srinivasan’s record should be closely examined to get a full picture of his professional background and experience.” That post is no longer available on the union’s website, and the only mention of Srinivasan that turned up in a search was a post about his opinion upholding minimum wage and overtime protections for home care workers. A spokeswoman said the AFL-CIO would have nothing to add on Srinivasan beyond a statement, issued on February 15, condemning Republicans for refusing to hold a hearing on any nominee.  

The Alliance for Justice, a liberal legal group, wrote before Srinivasan’s nomination that his career “left open some questions about his commitment to workers’ rights and to the rights of everyday Americans facing corporate and banking interests in the federal court.”

In an interview, Kyle Barry, director of justice programs at the Alliance for Justice, declined to discuss specific candidates, but said, “I think the progressive community broadly is just being supportive of the president doing his constitutional duty of actually nominating someone. And the focus here is whether the Senate will actually do its job and provide a prompt and fair hearing and an up and down vote on whoever that person is.”  

That’s not to say that any Obama nominee would be rubber-stamped. Even before Nevada Gov. Brian Sandoval took himself out of the running after his name was floated by The Washington Post, many progressive groups balked.

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“CREDO’s fierce grassroots activism in support of confirming President Obama’s nominee isn’t guaranteed,” said Murshed Zaheed, acting political director at CREDO, which has gathered nearly 100,000 signatures on a petition asking Obama to nominate a progressive. “CREDO is not going to fight to confirm any nominee with a track record of attacking women’s rights, worker’s rights, voting rights, or any other core progressive values.”

That said, liberal action on Obama’s future nominee is likely going to be firmly focused on vulnerable Republican senators and trying to shame leadership into holding a hearing, despite Senate Majority Leader Mitch McConnell’s steadfast opposition.

“If we accept that Mitch McConnell can decide how this is going to go -- flout precedent, the constitution -- none of us are doing our job,” said Fredrickson. “He’s making a political play. And we have to play our hand too.”