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Scalia's Successor and the Net Neutrality Case

By Berin Szoka

Will President Obama nominate Sri Srinivasan to succeed Justice Scalia? The 48-year-old judge tops every Court-watcher’s list because nominating a moderate seems a win/win strategy for the White House. Even if his nomination were to stall until the next President took office, a Clinton or Sanders’ victory would seem that much less transformative — and Republicans, that much more obstructionist.

What no one predicting Srinivasan’s nomination has yet noticed is how much it could hinge on his looming decision in the the hottest case since “Obamacare”: the challenge to the FCC’s “net neutrality” order.

Srinivasan, the Moderate

Srinivasan’s own 97-0 confirmation to the D.C. Circuit in 2013 wasn’t controversial. But later that year, control of the second most important court in the country flipped when President Obama added three more Democrats. That was possible only because Senate Democrats abolished a longstanding rule requiring 60 votes to confirm judicial nominations — the “nuclear option.”

The D.C. Circuit is the main check on regulatory agencies. So Republicans panicked. But Srinivasan struck a decidedly moderate tone: “If we lived in a world where we had the rule of a judge, rather than the rule of law, you would have seen an absolute sea change, an avulsive change in the law as it was interpreted, applied and rendered by our court.” 

That’s precisely how President Obama needs to spin a shift in control of the Supreme Court — the first change since 1992.

The Politics of Srinivasan’s Nomination

Srinivasan was randomly assigned to the three-judge panel that heard arguments on the FCC’s case last December. A decision is expected by June — just in time for it to become a central issue at Srinivasan’s confirmation hearings.

Striking down the “net neutrality” order would bolster Srinivasan’s moderate credentials and perceived independence. Republicans would look that much more obstructionist for blocking his nomination.

But if he upholds the order, Srinivasan’s nomination may serve completely different political objectives: baiting Republicans into making “net neutrality” a central election issue, one they’ve fumbled thus far, while simultaneously insulating Srinivasan from criticism from the net-neutrality-obsessed Left.

Srinivasan almost certainly already knows how he’ll vote, but probably won’t tell even the White House. Either way, nominating him should seem like a win/win to the Administration: Claiming moderation or reframing an otherwise arcane fight over jurisprudence as a high-stakes battle between “Team Internet” and “Team Cable.” 

That’s precisely how the Digital Left succeeded in making “net neutrality” a rallying cry for millions — and a major national political issue. 

How the FCC Got Here

In 2014, the FCC was tacking a relatively moderate course. Having just lost in court for the second time, the agency proposed to essentially reissue its 2010 “net neutrality” rules under statutory authority just confirmed by the D.C. Circuit. 

But a coalition of well-funded activist groups got HBO comedian John Oliver to rally digital “monsters” to shower the FCC with several million comments. (Later estimates showed that 41% opposed FCC regulation, but that wasn’t mentioned in the media frenzy.) Weighing in on the suddenly hot issue seemed the perfect way for the President to reassert his relevance after Democrats’ midterm election shellacking.

The activist-Oliver-Obama alliance exploited the vagueness of “net neutrality” to subtly change the subject. The issue was no longer how broadband providers dealt with web companies — an issue that Republicans have long offered to resolve legislatively, from actually passing a law in the House in 2006 to offering to reinstate the 2010 rules today.

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Berin Szoka is President of TechFreedom, a non-profit think tank, which leads a band of Silicon Valley entrepreneurs and investors in challenging the FCC’s order.

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