Damn Obama and his diabolical “court-packing” plan of getting one judge confirmed to the D.C. Circuit (out of 4 vacancies) in 5 years!
And, of course, even that nominee was very much a compromise candidate. I’ve been meaning to discuss Mark Graber’s excellent new article on the implications of elite polarization for the Supreme Court — and I’ll have more on it later –but Srinivasan is interesting case because he tests its limits. An important product of increased polarization between Republican and Democratic elites, Graber points out, is that judges who are part of the same broad “team” tend to be pretty predictable even they don’t have much of a track record. Kagan, a very blank state candidate, has for example a voting record pretty similar to Sotomayor.
For much of American history, this hasn’t been true. A Democratic president could appoint both Brandeis and McReynolds, Frank Murphy and Jimmy Byrnes, not because McReynolds and Byrnes were “mistakes” but because southern white supremacists and Jewish and Roman Catholic progressives were all part of the Democratic coalition and were all represented in Supreme Court appointments. Even Souter in a sense was only half a mistake — it’s not exactly that he wasn’t a conservative, it’s that he represented a strand of New England conservatism that no longer has any place in the national Republican Party. It’s very unlikely that Harriet Miers, an even blanker slate than Kagan, would have had a voting record that much different than Alito or Roberts; there’s a big difference between a contemporary Texas Republican and a New England Republican of the 80s.
Particularly as a potential Supreme Court nominee, Srinivasan will be an even more interesting test case than Kagan; the fact that he’s chosen to be part of the Democratic “team” is pretty much the only evidence that he’d be a progressive judge. His tenure on the D.C. Circuit will therefore bear watching. But unlike 40 years ago, it’s very possible that his votes and opinions will be broadly similar to a more clearly liberal nominee. And it’s virtually impossible for him not to be substantially more liberal than the Republican appointees on the D.C. Circuit.