Justice Antonin Scalia’s death makes an already unpredictable presidential campaign harder to forecast, but far more interesting. What makes this chain of events so salient for Asian Pacific Americans was the immediate rumor mill suggesting the possibility that the next Associate Justice of the Supreme Court of the United States could be of Indian descent.
Padmanabhan Srikanth “Sri” Srinivasan is currently one of the 11 judges on the United States Court of Appeals for the District of Columbia Circuit, which is an appellate federal court with a very specific jurisdiction – adjudicating over the legality and constitutionality of agency rulemaking.
Srinivasan, who grew up in a Tamil Hindu family, was born in India, but immigrated to Kansas when he was very young. He attended Stanford for college, and then also finished a dual JD/MBA program there, which he followed with key clerkships including one for retired justice Sandra Day O’Connor.
Srinivasan’s possible nomination is more than just a feel good moment for immigrants from the Subcontinent; it makes perfect political sense and would be an absolutely fitting coda for the first biracial president of the United States for assorted reasons.
First, South Asian Americans are currently experiencing what can only be described as a tipping point in American politics. There are several high-ranking Indian Americans who have been elected or appointed at the state and federal levels including Governor Namrata "Nikki" Haley (R-South Carolina); Attorney General Kamala Harris (D-California); Congressman Amirish “Ami” Bera (D-California 7th District); U.S. Surgeon General Vivek Murthy; Preet Bharara (U.S. District Attorney); Kumar Barve (Maryland House of Delegates); Neel Kashari, president of the Federal Reserve Bank of Minneapolis; Judge Sabita Singh (Massachusetts District Circuit Court); Aneesh Chopra, the first Chief Technology Officer of the U.S.; and Neal Katyal, former U.S. Deputy Solicitor General.
Second, Srinivasan would be the first foreign-born Supreme Court justice in history. If that doesn’t seem like a big deal, then consider the current political climate and the astonishing, albeit depressing, attitudes that have surfaced in the last several years on whether refugees and immigrants of certain backgrounds and faiths “belong” in America. What a more prescient time than nominating someone who is a naturalized American citizen?
Third, Srinivasan is a moderate justice and one who is favored by Democrats and Republicans on the Senate. His 2013 confirmation vote for the United States Circuit Court of Appeals was 97-0 (Senators Barbara Boxer, D-CA, Jeff Flake, R-AZ, and Frank Lautenberg, D-NJ, did not vote).
And yet, Srinivasan faces a tough confirmation for a number of reasons. First, there are the various political realities of a divided government where the Senate and the president are of different parties. Senate Majority Leader Mitch McConnell (R-KY) and others in his party are calling for there to be no confirmation of a Scalia replacement until after the presidential election. In part this relies on what is known as the Thurmond Rule, named after long-lived and passionate segregationist Senator Strom Thurmond (R-SC), which suggests that no lifetime federal appointments should get through in the 6 months before a lame-duck presidential term. Effectively, if a nomination doesn’t get through the Senate by the beginning of the summer, it shouldn’t get through at all. As we can see, the current Senate leadership’s interpretation of this rule is ironically quite liberal and would involve them intentionally dragging out the nominations process for months to meet this artificial deadline.
In our own research on nominations and nominee ethnic background, we looked at over 20,000 federal nominations from 1987 through 2012. Using surname as a proxy for ethnicity we focused on South Asian American (SAA) and Asian and Pacific Islander American (APA) nomination success. Republican presidencies in our data related to an 8% decrease in confirmation. Republican Senate majorities were tied to 2% decreases while a party difference between the president and the Senate Majority peaked at a 6% decrease in confirmation probability. This would seem to suggest that divided party effects reducing confirmations were more likely to be driven by recalcitrant Republicans controlling the Senate.
Our data suggested that the Thurmond Rule applied to more than just judicial appointments. Nominations initially introduced during a presidential election year were 18% less likely to be confirmed. Turning to our primary variables of interest we found no relationship between nomination success or failure and a person being of APA descent. However, when we focused on SAA nominees we found that they were roughly 9% less likely to be confirmed regardless of the potential position in the federal government. In light of current party divisions between the president and Congress, the presidential election, the visibility of a position on the highest court in the land, and the potential effect of a peculiar strain of xenophobia that one of the current presidential candidates thrives on, one would expect a Srinivasan nomination to be rather contentious.
In conclusion, President Barack Obama has the opportunity to do what no American president has done since Ronald Reagan, and that is to successfully see three new justices added to the Supreme Court. Judge Srinivasan still faces an uphill battle; nominations are not merely nominations, and success in a Circuit Court nomination may not translate to SCOTUS nomination. In the past 30 years, no SCOTUS vacancy has taken more than 237 days to be filled. To find a SCOTUS vacancy that took more than a year to be filled one would have to look nearly 50 years into the past.
This is a changing time for our republic and the New American electorate is a dynamic and heady masala of religions, cultures, sexualities, phenotypes, and experiences. Sri Srinivasan should be the next justice on the United States Supreme Court, because he is the best jurist for the job. Isn’t that what America is all about?
(Shyam K. Sriram is a doctoral student in the Department of Political Science at the University of California, Santa Barbara. He focuses on Asian Pacific American politics, immigration, and refugee resettlement. Stonegarden Grindlife is a doctoral candidate in the Department of Political Science at the University of California, Los Angeles. He focuses on Congress, legislative behavior, and political communication.)