A Question For Democratic Senate Judiciary Committee Members to Ask Sri Srinivasan If Obama Nominates Him to Fill Scalia’s Seat

In private practice, prior to his appointment to the appeals court, Srinivasan successfully represented former Enron Corp CEO Jeff Skilling in a Supreme Court case. The Supreme Court narrowed the reach of the so-called honest services fraud law, invalidating one theory used by prosecutors for Skilling’s conspiracy conviction and ordering further appeals court review. Despite the high court ruling, Skilling’s conviction was later upheld by an appeals court.

Srinivasan also represented Exxon Mobil Corp in a lawsuit alleging human rights abuses in Indonesia, and mining giant Rio Tinto in a similar case about its activities in Papua New Guinea. Both cases concerned in part whether a law called the Alien Tort Statute allows such cases to be heard in U.S. courts. The Exxon case is still ongoing. The Rio Tinto lawsuit was dismissed.

Judge who could replace Scalia worked on controversial cases for business, Jonathan Hurley, Reuters, today

There are, of course, some questions about the Exxon Mobil cases that he should and probably will be asked, by Democratic members of the Judiciary Committee if Obama does nominate him, as the betting folks in Washington expect.

Far less controversial, in my opinion, is his representation of Jeffrey Skilling.  The federal honest-services fraud statute, which the Court held, at Srinivasan’s urging as a partner in the Supreme Court Practice group at the Washington, DC office of mega-legal-powerhouse Los Angeles-based O’Melveny & Myers, was too vague to comport with constitutional dictates of due process of law.

But what is controversial, in my opinion, is how it happened that this particular criminal defendant managed to garner the attention and support of at least four justices (the minimum needed for the court to grant a petition to hear a case), in a case that challenged a criminal statute as unconstitutionally vague.

The Supreme Court has a preset number of cases it will hear each year (a fact that itself is ridiculous and inappropriate).  I believe the number is about 70.  Almost all of the cases that fill those spots—court term after court term after court term—are heard at the behest of lawyers who fall into one of three categories: attorneys representing law enforcement, usually the state’s attorney asking the Court to reverse a lower federal appellate court’s grant of a petition for writ of habeas corpus on behalf of a convicted state-court criminal defendant, but also “cert.” petitions asking the Court to reverse a monetary judgment against a law enforcement officer in a civil rights lawsuit; a lawyer from one of the rightwing self-styled legal foundations around the country serving as pro bono counsel in a culture-wars and Koch-brothers-wish-list cases (think: affirmative action, attempts to nullify the Voting Rights Act, attempts (currently, at the Court) to profoundly restructure legislative reapportionment; you get the picture); and a member of so-called Supreme Court specialist bar, whose actual specialty is putting the lawyer’s name, law firm and Washington, DC. Office address on the cert. petition, for a fee that only corporations, lobbying groups and individuals of the Jeffrey Skilling personal-wealth set, have access to.

Pretty much no one else need apply, although roughly 9,000 others each year do. Many of them to the tune of about $7,000, the de facto application fee, the typical cost for the 40+ copies of the cert. petition and appendices, printed by one of three printing companies that exist because they print these things with the (very) nonstandard sizing and binding-into-a-cute-little-booklet precision that the Court’s rules mandate.  A high cost for the privilege in participating in a charade.  A steep admission fee, deliberately so; there is no conceivable justification for it, given today’s modern technology for printing, electronically transmitting, and e-reading.

I mean, y’know, no legitimate justification for it.

In recent years, the Court has, in my opinion appropriately, agreed to hear a number of cases that challenge on vagueness grounds the constitutionality of criminal statutes.  But they are always federal statutes rather than state ones, and almost always are heard at the behest of someone whose cause correlates with a Republican interest, of the culture-wars variety or of the corporate-folks variety.

Vagueness challenges to the Armed Career Criminal Act of 1984 (ACCA)is a prime example.  Anthony Kennedy, in particular, has taken an interest in the issue of whether the statute is unconstitutionality, and wrote a particularly moving due process opinion a while back in an ACCA case, on the vagueness issue.  But he has choosen his ACCA-vagueness cases carefully.  Wikipedia summarizes the Act as providing that:

If a felon has been convicted more than twice of a “violent felony” or a “serious” drug crime, the Act provides a minimum sentence of fifteen years, instead of the ten-year maximum prescribed under the Gun Control Act. The Act provides for a maximum sentence of life imprisonment.

To my knowledge, until very recently each of the cases that the Court has agreed to hear on interpretation of this statute in the last decade or so concerning the vagueness issue and interpreting the statute’s breadth, was—surprise!—not a drug case but a gun case. As in, is it a violent crime if you were just carrying a gun but you didn’t use it in the burglary? That kind of thing.

Access to court is a critical issue that starkly pits the elites against the hoi polloi, quite dramatically at the Supreme Court, in two meaningful respects: Cases that argue jurisdictional access and quasi-jurisdictional access are, to a baldly improper extent under the doctrine of separation of powers between the federal judicial and legislative branches, mainly concern Supreme Court-fabricated “doctrines” and Supreme Court interpretations of a habeas corpus statute that amount to a rewriting of the statute.  But regarding jurisdictional access and quasi-jurisdictional access in civil lawsuits, the only cert. petitioners who have access to actual consideration of a cert. petition that challenges those doctrines as interpreted by the lower federal courts, are those whose petitions bear the names of the likes of John Roberts when he was practicing law, and Sri Srinivasan before he became a federal appeals court judge.

(These doctrines should be challenged facially, not merely in incremental as-applied contexts, in collateral lawsuits filed in federal district court, which is what a friend of mine is doing right now.  But she’s not represented by prestigious counsel or, pro bono, by some progressive version of a legal-think-tank/law-firm.  And she will be represented by a member of the Supreme Court specialists-in-getting-an-actual-justice-to-read-your-cert.-petition cadre.  Nor will she be paying the $7,000 to a printing firm for cert. petitions.  So her lawsuit doesn’t count.  Literally. It. Doesn’t. Count.)

In a post here yesterday about the Scalia-seat vacancy that has a record-long title, even for a post by me, the queen of long blog-post titles, I wrote:

Had Justice Scalia’s death occurred a few weeks before the South Carolina primary rather than eight days before, these opposing views might have been put to the test.  Obama might by now have nominated a Black or Asian-immigrant or female moderate whose name appeared first on his long shortlist and then on his short shortlist by dint of the algorithms that produce such shortlists.  Clinton would shout her support from the hilltops of the Blue Ridge Mountains, Sanders would criticize her for shouting, and Clinton would shout: sexism.

But Sanders also would criticize the choice, further securing that special place in hell.  Or maybe not securing it, since this is 2016, not 1996 and not even 2006.

Actually, although the shortlist list-makers mostly haven’t noticed, this is the age of Ferguson, of Eric Garner, of Sandra Bland, of Walter Scott, etc., etc.  It is the age of (as Ferguson is a poster town for) extraordinarily inappropriate bail requirements.  It is the age of the funding of local government via exorbitant traffic fines, petty (trumped-up) ordinance-violation fines, metastasizing court fees, and prison fees.  It is the age of extremely belated (but extremely welcome nonetheless) broad public recognition that prosecutor misconduct is commonplace (and is tacitly invited by opinions issued by the Supreme Court in a variety of cases).

And it would be deeply offensive for Obama, or for that matter a second President Clinton, to nominate another Elena Kagan—or anyone who has no background in representing non-white-collar criminal defendants, especially in state courts or in federal habeas corpus cases that challenge state-court convictions, or related types of civil rights litigation.

It’s now permissible to mention the interests of the people whose lives are most profoundly and most directly affected by Supreme Court appointments.  Really.


My post goes on to recommend to Bernie Sanders, who is my candidate but probably does not read Angry Bear (but what the hell)—although he should!—three names for a shortlist for consideration for nomination to the Court, during the primary campaign.  If Obama believes that only this man has a reasonable chance for Senate confirmation, then, fine, he should nominate him.  There most probably will be at least one more opening on the Court in the next four years, and President Sanders, certainly, or President Clinton, maybe, will limit their consideration of candidates to those with a background in criminal law, including criminal law that affects ordinary folk.

But this issue illustrates exactly the type of thing that Sanders has in mind when he talks of using the bully pulpit to educate and motivate people can’t afford lobbyists (and can’t afford the current equivalent of John Roberts or Sri Srinivasan when they were practicing law) to make their voices heard and their policy and nominee choices known.

This post’s (relatively short, for me) title is “A Question For Democratic Senate Judiciary Committee Members to Ask Sri Srinivasan If Obama Nominates Him to Fill Scalia’s Seat.” The question, or questions concern genuine, actual, and meaningful access to Supreme Court review by those who, unlike Jeffrey Skilling, could not have afforded Srinivasan’s fees.

As regular readers of my posts here at AB—yes; both of you!—might have noticed, I usually end my posts with some funny or clever line or two.  (Okay, what I think is a funny or clever line or two; I try.)  Not this time, though. There really is little of more importance, in my opinion, than the issue of meaningful, or literal, access to the courts, including—and in the criminal and criminal-related areas and in areas such guardianships-conservatorships, parental visitation (personal: yes, Sean, I’m thinking of you), and the like, meaningful appeal and actual, meaningful, and in the case of guardianships and such, immediate access to collateral federal-court review of the constitutionality of what are truly bizarre and brazenly unconstitutional probate court and family court orders that violate express state statute.

This stuff is very commonplace, folks.  But only Exxon Mobil, Sprint Communications, and other parties like them who are represented by lawyers of the sort who populate the Supreme Court’s 70-case-per-year docket are permitted to challenge these jurisdictional and quasi-jurisdictional dockets.

So: No attempt at something funny or clever this time.  Just an expression of hope that this post gains some actual attention.

And this: There is no branch of government, federal or state, no public institution, no public entity that is more permeated with elitism than this country’s courts.  None.



ADDENDUM: Reader Urban Legend and I just had this exchange in the Comments thread:

Urban Legend

February 15, 2016 3:20 pm

It would be nice to see someone from other than Harvard or Yale (or other Ivy or Eastern “Little Ivies”) for a change. Like a state university such as Cal, Michigan, Wisconsin, Texas or Ohio State. If they are going to re-capture some connection to ordinary Americans outside the coastal enclaves, Democrats need to shed the image of intellectual elitism developed over the last 30 years (with plenty of Rovian assistance from the Republicans wanting voters to focus on the culture wars rather than their economic distress, but with Democratic Party neglect as well). Obama unfortunately played right into that imagery with his Ivy League-heavy cabinet and top judicial appointments.



February 15, 2016 3:41 pm

Urban, my first choice, as I said in my post yesterday, is Jeffrey Fisher, whose JD is from the University of Michigan and who originally is from Kansas City.

Fisher also is not and has never been a judge—a big plus, in my opinion.  He is the head of Stanford University Law School’s Supreme Court Litigation Clinic, and when he was in private practice with a law firm in Seattle served as voluntary, pro bono Supreme Court counsel to ordinary-folk folks convicted of crimes in state and in federal court, and won major changes in the law.  With the help of Scalia, no less, who in some of the cases provided the fifth vote; Stephen Breyer was among the dissenters.

And here’s something very interesting, for sure: Fisher served as a law clerk to Justice Stevens, and then of course was offered huge bucks (former Supreme Court clerks get large bonuses to sign with mega law firms) to join the Washington, DC mega-firm or the Washington office of a mega-firm based elsewhere. But he chose instead to leave Washington in favor of, well, Washington.  The state. Straight out of his clerkship, he joined a large prestigious Seattle-based firm.  In Seattle.

He represented the usual corporate-law clients.  But he also decided to represent people who could not quite* pay his fee: people convicted of crimes in state courts, who had valid challenges to the constitutionality of some aspect that lead to their conviction.  In the Supreme Court.  And he won. And won.

He’s white and male, though … so … well … you know.

The chance that Clinton would nominate him is close to zero; Clinton is nothing if not all about demographics.  The chance that Sanders would nominate him is, I’m betting, good.


*Word typo-corrected, from “quote”.  ” Sentence was supposed to say “But he also decided to represent people who could not quite* pay his fee: people convicted of crimes in state courts, who had valid challenges to the constitutionality of some aspect that lead to their conviction.” 2/17 at 10:11 a.m.