From the Thursday Morning Jolt . . .

Why Sri Srinivasan Might Not Be So Centrist or Moderate After All

A conservative legal mind who watches the D.C. circuit closely writes in to the Morning Jolt, offering a cautionary note about the conventional wisdom that D.C. Circuit Court of Appeals judge Sri Srinivasan represents one of President Obama’s more centrist or moderate options for a Supreme Court nomination:

You mentioned Judge Sri Srinivasan as a moderate falling somewhere between Souter and Kennedy. He is not likely to be a moderate.

In fact, so far, his record as a judge on the D.C. Circuit has been somewhat to the left of Ruth Bader Ginsburg back when she sat on the same Circuit. She became more liberal once elevated to the Supreme Court, where she faced no chance of reversal. My guess is that any Obama appointee will become more liberal once elevated to the Supreme Court, due to the fact that Supreme Court decisions are final and can’t be reversed.

This legal mind notes Judge Sri Srinivasan ruled in favor of government requirements on commercial speech:

In a divided opinion Tuesday, a three-judge panel for the appellate court stood by its previous decision to slash the SEC’s requirement that issuers declare whether their products are “conflict free” because it violates their First Amendment rights. The majority said its opinion wasn’t swayed by a separate D.C. Circuit ruling in American Meat Institute et al. v. U.S. Department of Agriculture et al., which in July 2014 upheld country of origin labeling in the interest of informing consumers because the SEC rules don’t concern advertising or point-of-sale disclosures.

The panel’s reasoning turned on its interpretation of the U.S. Supreme Court’s standard in Zauderer v. Office of Disciplinary Counsel, which dealt with compelled speech for advertising purposes. But in a lengthy dissent, U.S. Circuit Judge Sri Srinivasan said the panel had completely misread Zauderer and that the First Amendment poses “no bar” to the SEC’s disclosure obligation.

He ruled the government can broadly make decisions based on race and gender . . .

Last month, in an opinion authored by Judge Sri Srinivasan, a D.C. Circuit panel ruled that a white Foreign Service Officer’s challenge to a long since defunct, and short-lived, State Department affirmative action hiring plan, which was aimed at increasing racial diversity among the officer corps in the U.S. Foreign Service, was properly dismissed by a federal district court.

. . . and that the Labor Department can impose wage and hour regulation on home-health-care providers . . .

In the opinion for the District of Columbia Circuit Court of Appeals, U.S. Circuit Judge Sri Srinivasan wrote that it was within the Department of Labor’s power to change the exemption for third-party employers, and that the department’s actions were neither arbitrary nor capricious.

Srinivasan is willing to rule against the EPA . . . when it gives regulated industry a break:

In response to a suit brought by the Natural Resources Defense Council, a federal appeals court voted 2–1 to slap down an attempt by the Environmental Protection Agency to weaken enforcement of a law designed to cut ozone out of the atmosphere.

In 2008, the EPA issued regulations that would allow some areas extra time to comply with a Clean Air Act–mandated reduction in the allowable amounts of ground-level ozone, which is a product of fossil fuel consumption, and with restrictions on planning transportation projects that might add to ozone production . . .

Judge Sri Srinivasan found that the EPA had no right to change the implementation date of the regulations, nor could it lift restrictions on projects that might add to the ozone problem. “We conclude that both challenged aspects of EPA’s regulations implementing the 2008 ozone standards exceed the agency’s authority under the Clean Air Act,” he wrote. “ . . . Because we find that the EPA’s challenged implementation rules exceed the agency’s authority under the Clean Air Act, we vacate the pertinent portions of EPA’s regulations.”

This conservative legal mind continues his assessment:

Ironically, the supposedly liberal judges who were put on the D.C. Circuit after him — to pack the D.C. Circuit after the filibuster was curbed — have proven more willing to question government regulations than he is. They’ve joined rulings to strike down certain gun regulations in Washington, D.C.

Moreover, even liberal district judges in D.C. appointed by Obama rule against the Obama administration more often than Judge Srinivasan, like Judge Amy Berman Jackson ruling against the NLRB about posting requirements; and against EPA over Clean Water Act coal regulations, where she was later reversed by the D.C. Circuit; and Judge James Boasberg ruling against the IRS when it attempted to license tax preparers.