Bench Memos

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Re: Obama’s Keystone Kops Routine on D.C. Circuit Vacancies


Following up on my post yesterday, I’ll note this curiosity: President Obama nominated Sri Srinivasan without first receiving the ABA judicial-evaluation committee’s rating of Srinivasan. Indeed, the ABA committee has apparently just begun its investigation of Srinivasan: A lawyer tells me that he or she received this morning a letter faxed by the D.C. Circuit member of the ABA committee yesterday evening. That letter reads in part:

I am writing to you on behalf of the American Bar Association’s Standing Committee on the Federal Judiciary, which has been asked by the President and the Senate Judiciary Committee to evaluate professional qualifications of nominees to the federal courts. As the member of that Committee representing the DC Circuit, I am conducting an evaluation of Srikanth Srinivasan, now Deputy Solicitor General of the United States, who is a prospective nominee for the United States Court of Appeals for the District of Columbia Circuit. Although the President announced his intent to nominate Mr. Srinivasan for this position on June 11, 2012, the Committee still is conducting its investigation on the same confidential basis and is focusing on the same qualifications as we do for other nominations.

Further, as of yesterday afternoon, someone else I spoke with who is routinely contacted by the ABA committee on D.C. Circuit nominees hadn’t heard anything from the committee about the Srinivasan investigation.

Srinivasan is an accomplished appellate litigator, and it’s a safe bet that he will garner a “well qualified” rating from the ABA committee on his professional qualifications. What’s puzzling is why the White House chose to depart from its standard practice by nominating Srinivasan before receiving the ABA’s rating.

I’ll offer two guesses (which aren’t mutually exclusive):

First, the White House may be eager to demagogue its failure to get a D.C. Circuit nominee confirmed. It’s more difficult to complain about no confirmations when there are no nominees. Hence, the desire to skip the weeks-long ABA process on Srinivasan (and also the bizarre belated renomination of Caitlin Halligan, whose candidacy most observers believed to be dead).

Second, the White House may have wanted to preempt a revival of the Left’s opposition to Srinivasan’s nomination. By nominating him before the ABA process even really got underway, the White House prevented word from circulating about his prospective nomination. Instead, it presented the Left with a fait accompli.


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