Today, the Committee will hear testimony from Sri Srinivasan, who is nominated to be a judge on the D.C. Circuit Court of Appeals, a court which has not seen a nominee confirmed to it since President George W. Bush’s fourth nominee to that court was confirmed in 2006. Today, 1541 days after President Obama has taken office, four of the 11 seats on the D.C. Circuit are open, putting the remaining judges under undue strain.
There are now 188 pending cases per active judge on the D.C. circuit, 50% higher than when the Senate confirmed Thomas Griffith to fill the 11th seat in 2005. Although the cases handled by the D.C. Circuit are unusually complex, the caseload per judge on that court is higher than that of the 10th Circuit, to which the Senate recently confirmed Robert Bacharach.
The President has nominated talented nominees to help alleviate this pressure. Caitlin Halligan waited 905 days for a simple up-or-down vote. She came with the American Bar Association’s highest rating, glowing recommendations from bipartisan supporters, and a diverse legal career marked by distinctive service as New York’s Solicitor General.
Her nomination was filibustered, however, and judging from the discussion in Committee and on the floor, this was in large part because of positions that she had taken on behalf of the State of New York in litigation against gun manufacturers.
But as a Senator, I don’t believe that I have the right to ask that judicial nominees have advocated only positions that I think are correct. As Chief Justice Roberts has said – quote – “It’s a tradition of the American Bar that goes back before the founding of our nation that lawyers are not identified with the positions of their clients.” To do so is unfair to advocates. It is unfair to unpopular clients. And it is unfair to the American people. Every time the Senate holds up a nominee for political reasons, we lose not only the contributions of that candidate but we also make it harder to find talented individuals who are willing to serve.
The nominee before us today appears from his qualifications, from my discussions with him, and from the many bipartisan recommendations his nomination has received, to possess and exceptionally talented legal mind. He has served in the Solicitor General’s office for both Republican and Democratic administrations. He has served with such distinction that 12 bipartisan, high-ranking officials in the Office of the Solicitor General have endorsed his nomination.
Mr. Srinivasan has also represented an astonishingly diverse group of clients, from criminal aliens to large corporations to the United States itself. As a result, he has advocated legal positions that are sure to run counter to at least a few policy preferences of any politician.
But I will not judge him on a standard of ideological purity.
The D.C. Circuit is perhaps the most important appellate court in the nation. It is called upon to decide questions of national importance, such as the legality of agency action and the tools employed as part of the struggle against terrorism. The cases that come before it require sober consideration and legal acumen, not ideological purity.
In my view, when a President submits a qualified candidate, of good character and sound legal mind, absent exceptional circumstances, that candidate is entitled to a vote. I look forward to the testimony today, which I suspect will confirm what is apparent from Mr. Srinivasan’s qualifications. I hope that my colleagues will join with me to show the American people that the Senate is not broken and that regular order is capable of addressing the vacancy crisis on the D.C. Circuit.
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