The chief counsel for the Judicial Crisis Network (JCN), a conservative group trying to stop President Obama from filling the current vacancy on the Supreme Court, misrepresented a legal brief filed by potential nominee Sri Srinivasan in order to suggest that he was outside of the legal mainstream. In fact, the brief continued arguments made under the George W. Bush administration, whose Equal Employment Opportunity Commission (EEOC) originally brought the lawsuit. The discredited Judicial Crisis Network, which was previously called the Judicial Confirmation Network during the Bush years, frequently offers smears and false attacks against judicial nominations made by Democrats.
Judge Sri Srinivasan Of The U.S. Court Of Appeals For The D.C. Circuit Is A Supreme Court Candidate
Washington Post: Candidates Under Serious Consideration Include Srinivasan. According to The Washington Post, President Obama is “leaning toward a sitting federal judge to fill the vacancy -- and probably one the Senate confirmed with bipartisan support during his tenure” to fill the Supreme Court vacancy. Srinivasan is one of several sitting federal judges widely considered to be on Obama's short list. [The Washington Post, 3/7/16]
Srinivasan Represented The Claimant In The Supreme Court Case Hosanna-Tabor Evangelical Lutheran Church And School v. EEOC. The Hosanna-Tabor case arose out of a 2005 Equal Employment Opportunity Commission complaint filed by the Bush administration against Hosanna-Tabor Evangelical Lutheran Church and School on behalf of Cheryl Perich, a teacher at the school that was fired. Perich alleged that her former employer fired her -- in violation of the Americans with Disabilities Act of 1990 (ADA) -- because she had been diagnosed with narcolepsy, even though the disorder was controlled by medication. As litigation made its way through the United States District Court for the Eastern District of Michigan, the U.S. Court of Appeals for the Sixth Circuit, and finally the Supreme Court, the Hosanna-Tabor school argued that Perich and the EEOC's action was barred by a First Amendment principle called the “ministerial exception” that gives certain employees of religious institutions immunity from discrimination claims in situations that otherwise might violate federal anti-discrimination law. At the time, the Supreme Court had not determined the scope of the exemption. Srinivasan, while working in private practice, was the counsel of record for Perich's brief for the Supreme Court and argued that unlike clergy, teachers in religious schools who were responsible for non-religious classes could not be stripped of the anti-discrimination protections of the ADA. The Supreme Court ruled against the EEOC and Perich in a 9 to 0 opinion and decided that Perich's firing was covered by the ministerial exception, accepting the school's argument that she was in fact a minister for purposes of the rule. [Plaintiff's Brief In Opposition To Defendant's Motion For Summary Judgment, 8/5/08; Opinion of the Sixth Circuit of the United States Court of Appeals, 3/9/10; Brief For Respondent Cheryl Perich, accessed, 3/10/16; SCOTUSblog, accessed 3/10/16]
Judicial Crisis Network's Carrie Severino Distorts Srinivasan's Supreme Court Legal Brief To Attack Him
Judicial Crisis Network Chief Counsel Claims Srinivasan Has An “Extremely Liberal Approach To The First Amendment” By Falsely Claiming He “Denied The Existence Of The Ministerial Exception Altogether.” Writing for National Review, Carrie Severino, JCN's chief counsel, misrepresented Srinivasan's role in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, claiming that in his capacity as counsel for Perich he “denied the existence of the ministerial exception altogether.” Severino used her mischaracterization of Srinivasan's argument to claim “Only a lawyer with an extremely liberal approach to the First Amendment -- more liberal than any Justice on the Supreme Court -- could have considered this argument plausible”:
As I've explained before, one of the Obama Administration's key strategies in the coming Supreme Court nomination fight will be to pretend that their nominee is a “moderate” when, in fact, he or she will be firmly committed to the left's legal policy priorities. One of the names that keeps coming up along those lines is former Obama Administration official and sitting D.C. Circuit judge Sri Srinivasan. Is he a “moderate”? Not according to his record.
When her case reached the Supreme Court, however, Srinivasan denied the existence of the ministerial exception altogether. Religious schools like Hosanna-Tabor, he wrote, “possess no greater rights of expressive association than a secular school.”
But, one might say to oneself, wasn't Srinivasan just representing his client? No. The firm that handled the case below never challenged the existence of the ministerial exception. Srinivasan's brief made that argument for the first time before the Supreme Court. It's very unusual for parties other than the government to wait until they reach the Supreme Court to introduce sweeping new arguments, much less to dismiss 40 years of unanimous case law along the way. Only a lawyer with an extremely liberal approach to the First Amendment -- more liberal than any Justice on the Supreme Court -- could have considered this argument plausible.
The next time someone tells you Sri Srinivasan is a “moderate,” remember his ruling in the Clean Power Plan and his 9-0 loss in Hosanna-Tabor. [National Review, 3/10/16]
But Srinivasan's Brief Didn't Deny The Existence Of The “Ministerial Exception.” Rather, the brief argued that the “ministerial exception” should not bar all cases arising from discrimination claims under the Americans with Disabilities Act. The brief specifically cited lower court decisions that recognized the “ministerial exception” but ruled that it did not apply to teachers, like Perich, who taught secular topics at religious schools:
The ADA, like other employment discrimination laws, contains no “ministerial exception.” While Hosanna-Tabor argues that every court of appeals has recognized some form of “ministerial exception,” PB16-17, every published federal court of appeals opinion to consider the issue has refused to apply any “ministerial exception” to teachers of secular subjects in religious schools.
While neither secular nor religious associations have an expressive-association defense to the ADA's application in the circumstances of this case, that is not to say that such associations could never assert an expressive-association defense to the application of the antidiscrimination laws. This Court has established that expressive associations need not comply with antidiscrimination laws when doing so would require retaining an individual whose presence in a leadership position would significantly undermine a central expressive message of the association, absent an overriding state interest. [Brief For Respondent Cheryl Perich, emphasis added, accessed, 3/10/16]
The Argument In Srinivisan's Brief Is A Continuation Of What The Bush Administration Argued. In 2008 while at the trial court level, the Bush administration's EEOC similarly argued that the “ministerial exception” did not exist for employees who teach “secular academic subjects to [their] students”:
Contrary to what Defendant argues, however, the “ministerial exception” is not applicable in this case because Perich was not a minister. Nor did she have a pastoral role to Defendant's congregation while working at the School. Rather, the majority of her duties involved teaching secular academic subjects to her students. Therefore, because Perich was not a ministerial employee, Defendant cannot claim exemption from the ADA under the ministerial exception and its Motion should be denied. [Plaintiff's Brief In Opposition To Defendant's Motion For Summary Judgment, 8/5/08]
Unlike Severino, Other Conservative Legal Theorists Have Acknowledged The Bush-Era EEOC Position. In Lawless: The Obama Administration's Unprecedented Assault on the Constitution and the Rule of Law, Volokh Conspiracy contributor David Bernstein noted that “The federal government took up [Perich's] cause during the waning years of the Bush administration” and “argued that Perich's discrimination claim was not subject to the ministerial exception.” [Lawless: The Obama Administration's Unprecedented Assault on the Constitution and the Rule of Law, 11/17/15]
Srinivasan Has Already Explained His Legal Responsibilities In The Hosanna-Tabor Case
Severino's Attack On Srinivasan Recycles Confirmation Questioning From Republicans In 2013. Srinivasan already explained his role in the Hosanna-Tabor case in 2013 during a hearing for his nomination to the U.S. Court of Appeals for the D.C. Circuit. When asked about the case by Sen. Orrin Hatch (R-UT), Srinivasan noted that his job as an attorney was to not represent his own personal views on matters, but rather his “duty” as a lawyer was to “advance the arguments that are best designed to bring about a favorable result for the client.” Srinivasan also noted that the question in the case about the “ministerial exception” had not been decided “one way or the other” by the Supreme Court at the time. [Hearings Before the Committee on the Judiciary, 4/10/13]
During Confirmation Process, Srinivasan Was Praised By Former Solicitors General Who Served In Both Bush Administrations. Srinivasan, who went on to be confirmed by the full Senate in a 97 to 0 vote, was praised by high-profile Republican jurists while under consideration for the D.C. Circuit. As reported by USA Today:
Srinivasan comes to the Senate with bipartisan credentials. He clerked for Judge J. Harvie Wilkinson at the 4th Circuit and for Supreme Court Justice Sandra Day O'Connor, both Republican nominees. He worked in the solicitor general's office for five years during the George W. Bush administration before becoming its top deputy under Obama.
The White House has mounted an all-out effort to win his confirmation, including letters from former solicitors general and top deputies -- among them Paul Clement,Theodore Olson and Kenneth Starr, who represented both Bush administrations before the high court.
“Sri has a first-rate intellect, an open-minded approach to the law, a strong work ethic and an unimpeachable character,” the former solicitors general and top deputies wrote last week. They called him “one of the best appellate lawyers in the country.” [USA Today, 4/10/13]
Severino's Secondary Attack On Srinivasan Also Falls Flat
Severino Suggests Srinivasan Isn't “Moderate” Because He Voted Against Granting A Stay In High-Profile EPA Case. In her National Review column, Severino also wrote, “The next time someone tells you Sri Srinivasan is a 'moderate,' remember his ruling in the Clean Power Plan and his 9-0 loss in Hosanna-Tabor”:
Last year the EPA issued new “Clean Power” regulations that pose an unprecedented economic threat to the American economy. These regulations threaten to kill hundreds of thousands of American jobs, shut down 66 power plants, and cost the U.S. economy $2.5 trillion by 2030. Worse, the EPA issued the regulations based on the shaky legal claim that it has the power to do basically whatever it wants when Congress passes a flawed law. Power companies sought a temporary stay of the regulations, since without a stay they would have to fire thousands of employees while waiting for the courts to rule. Yet Srinivasan voted to deny the request. The Supreme Court had to grant the stay, with all four liberal justices dissenting.
The next time someone tells you Sri Srinivasan is a “moderate,” remember his ruling in the Clean Power Plan and his 9-0 loss in Hosanna-Tabor. [National Review, 3/10/16]
In Fact, The Stay Denial Was Summarily Unanimous And Included The Agreement Of A Republican Appointee To The D.C. Circuit. The per curiam opinion was issued on January 21 and unexceptionally concluded the “Petitioners have not satisfied the stringent requirements for a stay pending court review.” [United States Court of Appeals for the D.C. Circuit, 1/21/16]
Experts Say What Is Not “Moderate” Is Conservatives On The Supreme Court Issuing An Unusual Stay In The EPA Case Over The Dissent Of The Other Justices. After the D.C. Circuit denied a stay, the five conservative justices on the Supreme Court intervened and issued their own stay in February in a move described as “unusual” by Politico. UCLA School of Law Professor Ann Carlson described the move by conservatives on the Supreme Court as “way outside the bounds of normal Supreme Court practice” because “the Court has never done what it did today: stop a regulation from going into effect before any court had determined its legality.” [Politico, 2/9/16; Legal Planet, 2/9/16]
JCN Has A “Seven Figure” Campaign Opposing Obama's SCOTUS Nomination And Routinely Trades In Smears, Including Attacks Based On Nominees' Clients
JCN: “Let the People Decide” In “November What Kind Of Court They Want.” JCN announced on February 18 that it is “launching a seven figure television, radio and digital advertising campaign” demanding the Senate give “the people a voice. Let them decide in November what kind of Court they want.” The group will run ads “in Washington, DC during network and cable Sunday shows as well as in markets covering Senators who have taken a stand, including: Kelly Ayotte (NH), Chuck Grassley (IA), Ron Johnson (WI), John McCain (AZ), Mitch McConnell (KY), Rob Portman (OH), and Pat Toomey (PA).” [Judicial Crisis Network, 2/18/16]
The Judicial Crisis Network Was Previously Named The Judicial Confirmation Network And Pushed Bush Judicial Nominees. JCN was founded during the George W. Bush administration and was originally named the Judicial Confirmation Network. It was founded to push through President Bush's far-right nominees and “support the confirmation of highly qualified individuals to the Supreme Court of the United States” and “ensure that the confirmation process for all judicial nominees is fair and that every nominee sent to the full Senate receives an up or down vote.” The group changed its name and mission after President Obama took office. Its current mission is to support “only highly qualified individuals who share” a vision of “limited government,” a mission that now includes pressuring Republican Senators to block even confirmation hearings for the president's nominee. From a 2008 JCN ad:
In 2012, JCN Released A Widely-Condemned Attack Ad Accusing Michigan Court Candidate Of Volunteering “To Help Free A Terrorist.” JCN reportedly spent roughly $1 million on an ad attacking then-Michigan Supreme Court candidate Bridget McCormack for her work providing legal representation to Guantanamo detainees. The ad features Michigan woman Teri Johnson, whose son was killed in Afghanistan, stating: “My son's a hero and fought to protect us. Bridget McCormack volunteered to help free a terrorist. How could you?” McCormack went on to win the race. [Media Matters, 11/6/12; MLive.com, 10/30/12]
NY Times' Rosenthal: “McCarthyist” Ad Was Misleading. Andrew Rosenthal, the editorial page editor of The New York Times, criticized the “McCarthyist” ad for “shamelessly exploit[ing]” the death of a soldier and falsely attacking McCormack:
An ad paid for by the group with undisclosed donations shamelessly exploits the tragedy of the death of a young soldier in Afghanistan, Joseph Johnson - with the help of his mother, Teri. “My son is a hero and fought to protect us,” she says in the ad. “Bridget McCormack volunteered to help free a terrorist. How could you?”
That's easy to answer. She didn't. Ms. Johnson may not know that, but the Republican activists who paid for the ad surely do.
Ms. McCormack, a law professor at the University of Michigan, was part of a legal network called the Center for Constitutional rights, which coordinated efforts by American lawyers to represent Guantanamo detainees - most of whom were found to be improperly detained and released. Their goal was not to “free terrorists,” but to ensure that American prisoners were entitled to the rights and representation provided under international and American law. The Supreme Court affirmed those rights on more than one occasion.
The prisoner Ms. McCormack represented, Wahldof Abdul Mokit, was in fact released from Guantanamo in 2007 - by a military tribunal under a process created by the Bush administration - not by Ms. McCormack. He was sent back to his native Tajikistan, where he was arrested and sentenced for being a member of the Islamic Movement of Uzbekistan, which fought alongside the Taliban in Afghanistan. [NYTimes.com, 11/1/12]
MLive.com: “Flagrant Foul” And “Cynical Manipulation.” The Center for Michigan's Bridge Magazine criticized JCN's ad as committing a “flagrant foul,” concluding that it is “a cynical manipulation of individually correct facts to create the most unflattering image of a candidate. ... The tone of the ad says far more about the people who funded and crafted it than it does about the candidate it tries to attack.” [MLive.com, 11/5/12]
Detroit Free Press Criticizes Ad: “Claim Ignores The U.S. Rule Of Law.” Detroit Free Press reporter Paul Egan criticized the ad in a piece headlined, “She tried to 'help free a terrorist'? Claim ignores the U.S. rule of law.” He added: “No crimes -- no matter how heinous -- should be attributed to attorneys who help assure that the constitutional and international legal rights of accused people are observed.” [Detroit Free Press, 11/4/12, via Nexis]
JCN Already Similarly Smeared Judge Jane Kelly, Another Possible Nominee To The Supreme Court, For Also Doing Her Job As A Lawyer
Severino Claimed That Kelly Was Unsuitable For The Supreme Court Because She Represented An Unsavory Client While Working As A Federal Public Defender. Even though a public defender's basic constitutional responsibility to is to advocate for his or her client, Serevino attacked Kelly because while working as a federal public defender in Iowa, she secured a 14-year prison sentence plea deal for a client charged with receiving and possessing child pornography. In her blog for National Review, Serevino attacked Kelly because the former public defender had “argued her client was not a threat to society,” without mentioning Kelly was presenting the views of a psychologist that her client had been seeing. [National Review, 3/3/16; Media Matters, 3/7/16]
Right Wing Watch: “Do Conservatives Even Believe In The Bill of Rights?” Noting that “the right to a fair trial lies at the heart of the Sixth Amendment, and JCN actively promoted the confirmation of Chief Justice John Roberts, who once worked on the defense of convicted murderer John Ferguson,” Brian Tashman of Right Wing Watch condemned JCN's smear of Kelly and its continuation of conservative attacks on nominees over the nature of their clients. Such attacks have been repeatedly condemned by legal associations, including the American Bar Association. [RightWingWatch.org, 3/8/16]