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David Fontana

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The Washington Lawyer Nominee

Posted: 04/12/2013 8:26 am

Wednesday was the confirmation hearing before the Senate Judiciary Committee for President Barack Obama's latest nominee to the D.C. Circuit, Sri Srinivasan. Central casting could not have created a better person for President Obama to nominate than Srinivasan. It has been widely reported by now that Srinivasan has an unusually bipartisan pedigree and list of supporters. It also does not hurt that, as White House Press Secretary Jay Carney said earlier this month, "[h]e will be, when confirmed, the first South Asian circuit court judge in history." Nor does it hurt that Srinivasan grew up in Kansas playing high school basketball with none other than Danny Manning, one of the greatest college basketball players of his time. To put it simply: if the Obama Administration created a judicial nominations computer, even the computer could not have scientifically engineered a better nominee.

Srinivasan is a unique candidate on paper, and his stellar performance before the Senate Judiciary Committee demonstrated that his talents match his resume. But while he is unique, some elements of what makes him such a strong nominee and will make him a great judge are not unique, and suggest some ways forward on judicial nominations for the Obama Administration. The Obama Administration should consider nominating more lawyers with substantial experience in government in Washington--like Srinivasan--to the federal bench.

First, government lawyers are likely to be the perfect combination of talented lawyers and loyal to the President's jurisprudential agenda. Srinivasan grew up in Kansas, but ended up in Washington for most of his career because some of the best legal jobs in the world are in the federal government in Washington. Because it has some of the best legal jobs, the federal government features some of the best collection of legal talent of anywhere in the country.

These are even more progressive lawyers in particular working in government now than ever before. A Harvard Law-educated Democratic President and his staff have hired great lawyers for the executive branch. Now, too, several Democratic Senators (most notably Senators Al Franken, Charles Schumer and Sheldon Whitehouse, and now perhaps Senators Tim Kaine and Elizabeth Warren as well) have taken an interest in hiring great progressive legal talent to work for the Senate as well.

The President also has reliable but private information about the jurisprudential views of these government lawyers. Washington is a small town, and the legal elite in Washington is even smaller. A good number of those in the executive branch involved in Srinivasan's nomination, for instance, know him personally and can evaluate what kind of judge he would be.

The information gleaned from personal relationships is not the kind of information that can get a judicial nominee in trouble before the Senate. A government lawyer leaves a small paper trial. Their job makes it difficult for them to write in their personal capacity. In their official capacity they are merely serving as a lawyer advocating the causes of their client--and their client happens to be all of us, the people represented by the government of the United States. During Wednesday's hearing, several senators argued that concerns about positions Srinivasan as a government lawyer were not that significant because Srinivasan is a "public servant."

Second, government lawyers are desirable nominees because they are uniquely confirmable for reasons going even beyond their absence of a paper trial. Government lawyers in Washington are more likely to have the kind of personal relationships with senators and senatorial staff that grease the wheels of confirmation. The most notable moment in Wednesday's hearing was when the bomb throwing Tea Party-favorite Senator Ted Cruz, whom The New York Times labeled "The Nasty Newcomer," remarked that he and Srinivasan "have been friends for a long time," before later actually complimenting Srinivasan for the "very find job" he was doing before the Judiciary Committee. Friendship begets fewer filibusters and more votes for confirmation, and government lawyers in Washington have more friendships with important people in the Senate.

We may have witnessed a special moment in Washington on Wednesday, the first confirmation hearing of someone that Jeffrey Toobin of The New Yorker called "The Supreme Court Nominee-in-Waiting." But this special moment can become more common if the Obama Administration selects more nominees like Srinivasan. They may not be able to list Danny Manning as a reference, but they might be just as good for the federal bench and just as easy to get confirmed.

 
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