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February 25, 2016
Morning Jolt
... with Jim Geraghty
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, 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 very likely is NOT a moderate.

In fact, so far, his record as a judge on the DC Circuit has been somewhat to the left of Ruth Bader Ginsburg back when she sat on the D.C. 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 Resource Defense Council (NRDC), a federal appeals court voted 2-1 to slap down (pdf) an attempt by the Environmental Protection Agency (EPA) 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 DC Circuit after him (to pack the DC 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 DC 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 DC Circuit; and Judge James Boasberg ruling against the IRS when it attempted to license tax preparers.

Romney Suddenly Emerges to be the ‘Bane’ of Trump’s Existence:

Mitt Romney, in a phone interview with Neil Cavuto, yesterday:

Frankly I think we have good reason to believe that there’s a bombshell in Donald Trump’s taxes. Either he’s not anywhere near as wealthy as he says he, is or he hasn’t been paying the kind of taxes we would expect him to pay, or perhaps he hasn’t been giving money to the to the vets or the disabled like he’s been telling us he’s been doing. The reason that I think there’s a bombshell in there is because every time he’s asked by about his taxes, she dodges and delays and says well we’re working on it.

We’re not talking about the taxes that are coming due this year of course.

They’re working on those. They won’t be ready for months. We’re talking about taxes already filed, back taxes and my back taxes -- when I ran in 2012, my back taxes I put out in January of 2012. You know, we’re now in late February and we still haven’t seen either Donald Trump’s or Marco Rubio’s or Ted Cruz’s taxes. Frankly, the voters have a right to see those tax returns before they decide who our nominee ought to be.”

I think it’s pretty clear that given Donald Trump’s dodging and weaving and delays -- I think the last time it was asked about his taxes he said well it’s going to be months -- look, people have a right to know if there’s a problem in those taxes before they decide.

I’m just saying the fact that he is this aggressive in avoiding any discussion of his taxes and is not willing to put him out so far suggests that there’s something in there he doesn’t want to see. By the way, any time you talk about money, Donald Trump likes to tell you how wealthy he is, how he’s worth billions of dollars. The first time was asked about his taxes on the Today Show he said you know, “They’re beautiful, all right they’re big and they’re beautiful,” well we’ll great let us see. He likes to tell us how well he’s done. Why isn’t he showing us?”

(Romney hangs up phone, puts on Bane mask from The Dark Knight Rises.)

“Governor, what are you doing?”

“I cannot merely endorse one of Trump’s rivals. His punishment must be more severe.”


“Back in February 2012, Donald Trump endorsed me. He said I was ‘tough, and smart, and sharp.’ Then in November, after the election, Trump audaciously claimed I was defeated because my immigration policy proposals were too harsh: ‘He had a crazy policy of self deportation which was maniacal. It sounded as bad as it was, and he lost all of the Latino vote. He lost the Asian vote. He lost everybody who is inspired to come into this country.’ It is quite galling cowardice for a man to turn on his allies so quickly, and then completely change his position on immigration out of political opportunism.”

“Yeah, that is the worst. Although didn’t one of your own staffers once compare you to an Etch-a-Sketch?”

“Now Trump finds himself in a circumstance where the more fervently he denies the implication of my remarks, the more people will suspect it is true.”

“Governor, isn’t this exactly what Harry Reid did to you four years ago?”

“Indeed. Quite ironic, isn’t it?”

“I’m afraid I don’t entirely understand.”

“Now’s not the time for fear. That comes later.”

“Can’t Trump dispel your accusation by just releasing his tax returns?”

“Yes, but the fact that he hasn’t so far does indicate there is something troublesome in there. In 2009, Trump sued an author for claiming his net worth was only between $150 million and $250 million. Trump’s libel suit was dismissed, by both the regular court and the appeals court, declaring, ‘There were no significant internal inconsistencies in the information provided by the confidential sources, nor was there reliable information that contradicted their reports, so as to provide evidence of actual malice.’”

“No reliable information to contradict the report? How can that be? If Trump’s net worth is in the billions, he could contradict it by just showing his tax retu . . . Oh.”

Ian Tuttle of National Review caught up with the author, Tim O’Brien. The author said, ‘The case dragged on for as long as it did because he wouldn’t comply with discovery requests. He wouldn’t turn over the tax returns, then the tax returns came in almost so completely redacted as to be useless.’ Quite curious, if the crux of the case is how much money he has, no?”

“So whatever numbers were redacted in those tax returns, they were low enough below ten billion--”

“At the time, Trump claimed to be worth $6 billion. The editors of Fortune stopped trusting his own assessments of this net worth when he claimed it doubled in a two-year span.”

 “-- the numbers were low enough below $6 billion to cause him serious public embarrassment.”

“Trump sued the author for $5 billion in damages, and the court case went on for two years. That would appear to be 5 billion reasons to just show the tax returns and prove the author’s estimate was wildly off-base. But he did not. If he did not release unredacted returns then, he is extremely unlikely to release unredacted returns now. And today’s accusation will remain unanswered and unrefuted . . . probably forever.”

“Wow. That’s really cunning, governor. One last question: If you make the same accusation Reid did, and use the same tactics against your foes, doesn’t that just lead to another round of finger-pointing?”

“Yes, but that doesn’t trouble me. Trump has much shorter fingers than I do.”

ADDENDA: A cathartic paragraph to write:

These trailing candidates keep plugging away, week after week, in deep denial that the GOP electorate could be underwhelmed with their qualities. Far too many campaigns’ unspoken strategic plans have included “ . . . and then a miracle happens, and we become the front-runner.” Far too often at gatherings on the trail this year, everyone in the room knew the candidate wasn’t going to win except the candidate.

It’s like we’ve all been involuntarily recruited into some large-scale group-therapy session, play-acting a world in which George Pataki or Mike Huckabee or Lindsey Graham are on the verge of becoming the next president of the United States.


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By Roy M Griffis
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