WASHINGTON -- Merrick Garland didn't make it to court last week.
He had been scheduled to preside over a major hearing at the U.S. Court of Appeals for the D.C. Circuit, where he is chief judge and has served for nearly 20 years. Instead, his chair on the three-judge panel was empty.
As a courtesy, another highly respected judge who has been in the news in recent weeks stepped up to explain what was going on.
"Thanks, and before we proceed, I'll just announce for the parties that Judge Tatel will consider these cases based on ... the recording of oral argument," said Judge Sri Srinivasan, who took over the hearing for Garland and had to explain that Garland's replacement, Judge David Tatel, also didn't show up.
The case was no small thing, either: The judges were supposed to consider an appeal over a long-running fight between the American Civil Liberties Union and the Obama administration over its decision not to release thousands of previously undisclosed pages of the so-called Senate torture report.
Garland's surprise nomination to the Supreme Court, announced the day before, had him making the rounds on Capitol Hill. That Garland and Srinivasan were to share the bench on such a monumental week for the future of confirmation politics is one of the vicissitudes of Washington. In the end, only one got the nod for the job.
It's almost certain Garland's time in the spotlight will be an exercise in futility. Time and again, Senate Majority Leader Mitch McConnell (R-Ky.) and Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) have said that they won't even consider holding hearings for the president's pick.
McConnell must be terrified of the prospect of Garland knocking on his Senate office door and cameras catching the spectacle. The process is something of a ritual; it's perhaps the only time in our constitutional order where the separation of powers isn’t so separate, and the federal branches are supposed to meet and pose for photos.
The day of the nomination, McConnell spared Garland the trouble of a visit and gave him a pre-emptive call instead. On Sunday, McConnell hunkered down again and reiterated that he's not going to move forward with "confirming a judge to the Supreme Court under this president," not even in a post-election lame-duck session.
While Garland made his visits, the D.C. Circuit still had work to do. And without him around, the court was forced -- by an order of its own -- to remove him from the panel and put in the replacement that would hear Thursday's cases. If only empty seats on the Supreme Court were so easy to fill.
Srinivasan, now the second-most senior judge on the panel, handled the hearing with poise. He was really invested in the legality of releasing the Senate torture report. Not the executive summary the public learned about in December 2014, but the full 6,963-page report the Senate Select Committee on Intelligence transmitted to the White House, the CIA and other federal agencies with a stake in its contents -- a damning account of the failures of the Bush administration in its capture, interrogation and abuse of detainees in the aftermath of the Sept. 11 attacks.
"The issue in this case is whether the agencies have met their burden of showing that the Senate Intelligence Committee's final report of its investigation into the CIA's torture program is not an agency record subject to the Freedom of Information Act," Hina Shamsi, a lawyer and director of the ACLU's National Security Project, told the court. Since this law doesn't apply to the Senate, her organization really wants the D.C. Circuit to treat the report -- based on its transmission to the federal government -- as an agency record. Tough argument.
The case, which has a lengthy history, is important but very technical, maybe even a little bit boring. It's precisely the bread and butter of the D.C. Circuit, which hears more cases involving government transparency than probably all other federal appellate courts combined.
Srinivasan was into it. And for a moment, he seemed to be eating from the ACLU lawyer's hand. He listened and nodded intently. He consulted the legal briefs before him. He poured himself some water from a pitcher on the bench. Maybe he sensed that there was at least one reporter in the room who was more interested in his performance during the hearing than the specifics of the case.
His first question didn't disappoint.
"So can I ask you a conceptual question that's related to the account that you're giving us?" said Srinivasan, before delving into a methodical probing of dates and facts and statutory language that sounded less like a question and more like a half-minute-long soliloquy -- way too long for any human who covers courts to take down word for word.
This was Srinivasan in his element. If he was sad that he didn't get the nod to replace the late Justice Antonin Scalia on the Supreme Court, he certainly didn't show it. Like Garland, he was one of five judges on President Barack Obama's short list to fill the empty seat. And by and large, he was a favorite to get the gig -- of longtime court observers, advocacy groups and even the betting markets.
A poll by SCOTUSblog, the go-to source for all things Supreme Court, had him handily beating the other four presumptive nominees: Srinivasan was first with 53 percent of the vote; Garland dead last with 7 percent.
The selection of Garland stunned nearly everyone who thought the president would go for broke. Of Obama's five candidates, all but Garland were relatively young and either women or minorities. All had impressive credentials and personal stories to their names. Had the president gone with anyone other than Garland, the Supreme Court, for the first time in history, could've been made up of a majority who weren't white men. So for the third and last time of his presidency -- after becoming the first president to appoint two women to the high court, including Sonia Sotomayor, the first Latina justice -- Obama chose not to make history.
Srinivasan, in particular, was a compelling choice not just for his impeccable résumé, but also his background as an Indian-born immigrant with a Hindu upbringing, his formative years in Kansas, and his slow but steady rise through the echelons of the legal establishment.
After obtaining a bachelor's, a master's and a law degree from Stanford University, Srinivasan clerked for two Ronald Reagan-appointed judges -- an appellate judge in the 4th Circuit and Supreme Court Justice Sandra Day O'Connor while she was still on the high court.
Ahead of his confirmation to the D.C. Circuit in 2013, Srinivasan received effusive support from a bipartisan who's who of former solicitors general spanning several administrations -- advocates who represented the federal government before the Supreme Court and other appellate courts.
“Sri has a first-rate intellect, an open-minded approach to the law, a strong work ethic, and an unimpeachable character.”
"Sri has a first-rate intellect, an open-minded approach to the law, a strong work ethic, and an unimpeachable character," read a letter to the Senate signed by 12 luminaries including Ted Olson and Paul Clement, two Republican stars who were top lawyers in the George W. Bush administration.
"Sri is one of the best appellate lawyers in the country," the lawyers added.
By the time the Senate confirmed him 97-0 to the D.C. Circuit, Srinivasan became a virtual shoo-in for the next Democratic appointment to the Supreme Court. The D.C. Circuit, for better or for worse, is widely viewed as a sort of pipeline to the high court. In the same courtroom where Srinivasan heard the ACLU case, a portrait of a young Justice Ruth Bader Ginsburg hung from the wall. Scalia, Chief Justice John Roberts and Justice Clarence Thomas have also served there.
The D.C. Circuit matters not because it hears the issues people care about. You're not likely to catch major constitutional showdowns on abortion, affirmative action or same-sex marriage there. Instead, the court matters because its cases -- largely focused on the functioning of the federal government and its agencies -- will eventually find their way to the Supreme Court. When that happens, the cases will tell us, more or less, if the executive acted within its constitutional authority or otherwise obeyed Congress. As such, the D.C. Circuit is the ultimate referee for inter-branch power fights.
The hearing over the Senate torture report was illustrative.
"Of course these documents we've described ... are congressional records subject to our control," said Srinivasan, describing how the Senate characterized the report prior to sending it to the CIA and other federal agencies. He seemed sympathetic to the government's argument against release of the report.
That's the kind of case the D.C. Circuit -- that Garland or Srinivasan -- lives and breathes. All things being equal, the only thing that separates the two is their age and ethnicity. Length of service on the court didn't seem to matter. SCOTUSblog's publisher, Tom Goldstein, essentially came to the same conclusion when assessing their records: Neither judge has a hard-and-fast judicial philosophy -- which is to say, neither is a raging liberal that could embolden Senate Republicans.
So why would Obama go with Garland, the least exciting choice on his list? In an interview with NPR's Nina Totenberg, he didn't fully answer the question, opting instead for defending his overall record of judicial appointments -- which he said "reflects the country" and is "unmatched" for its diversity.
"In this case, Merrick Garland is the best person for the job," he said, while pointing to the two women he's appointed to the Supreme Court, Sotomayor and Elena Kagan.
But earlier in the same interview, Obama seemed to suggest he chose Garland for more than just his credentials -- that Garland is uniquely prepared to face what is shaping up to be a watershed moment in the history of Supreme Court confirmation battles. Obama, amid the coming drama, doesn't want the court to become an extension of politics.
"He is at a stage in his career where, given his confidence in his record, given the reputation that he's built in the legal community, that he is prepared, I think, to take on whatever unfair or unjust or wildly exaggerated claims that may be made by those who are just opposed to any nominee that I might make," Obama said. "Because he thinks it's important."
Slate's Dahlia Lithwick, herself a Srinivasan fan and an expert on the Supreme Court, suggested that perhaps Obama's choice of Garland was an act of grace toward the Asian-American judge -- that his name might have driven Senate Republicans to demand to see his birth certificate, or Donald Trump to call for his placement on a terror watch list. So to avoid all of that, the president went with the safer choice.
"That bar fight, sadly, is what awaits Merrick Garland," she wrote. "He and Obama may be the last men in America who still believe that the courts can be better and do better than the politics of nihilism and doom."
