The news of U.S. Supreme Court Justice Antonin Scalia’s death this Saturday comes on the heels of a decision last week by the U.S. Supreme Court to block the Environmental Protection Agency’s Clean Power Plan, which had sought to reduce the nation’s carbon pollution largely by targeting coal-fired power plants. The EPA plan had been opposed by 23 states who sought to stop the plan, but their appeal was denied by the liberal Circuit Court in Washington, D.C.
This Supreme Court, in a 5-4 vote, reversed the lower court’s ruling in an unprecedented action that had sparked intense criticism by legal scholars, and is worth a moment’s review.
“The unsigned order, without any explanation, puts a hold on a rule pending the outcome of proceedings currently underway in the D.C. Circuit Court, which had earlier denied a stay,” wrote Patrick Parenteau last week following the court’s ruling. Parenteau is professor of law and senior counsel at the Environmental and Natural Resources Law Clinic at Vermont Law School and was highly critical of the court’s ruling.
“This action is unprecedented in a number of ways,” he continued. “The majority made none of the findings typically required to obtain a stay. There is no analysis of the merits of any of petitioner’s claims. There is no showing that the rule threatens any immediate harm to petitioners, especially given the long lead times EPA has built into the process. There is no showing that the balance of hardships tips decidedly in favor of the petitioners, especially given the fact that most states are well into the process of developing implementation plans and those that do not want to submit a plan don’t have to. There is no showing that the stay is in the public’s interest, especially given the warnings from the scientific community that time is fast running out to avoid catastrophic consequences of climate disruption. Never before has the court interjected itself in a case with such high stakes that hasn’t even been fully briefed and argued before the lower court.”
The Court’s decision was proof to many that the conservative wing of the court under Chief Justice John Roberts has been one of the most overtly partisan and activist in recent memory.
“One final note,” Parenteau wrote, “if nothing else, the preemptive, unprincipled move by the conservative wing of the court underscores the critical nature of the upcoming election. It is likely that the next president, particularly if she or he gets two terms, will have the opportunity to appoint three justices to the court.”
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Those comments and the Supreme Court’s ruling last week illustrate the significance of Scalia’s sudden death. While the nation rightly mourns his passing and recognizes his skill and brilliance as a conservative jurist, the inescapable reality is that the fate of many important court cases now rests in a 4-4 deadlocked court or in a court whose balance will undoubtedly tip more liberal if President Obama is able to get a new nominee confirmed.
It is, of course, absurd to argue — as the Republican presidential candidates did in their debate Saturday — that the president would not nominate a replacement to the Court. It is the president’s constitutional duty to do so and there is ample time for the Senate to muster a simple majority to approve his nominee. A political battle will surely pit the Senate, which is currently made up of 46 Democrats and 54 Republicans, against the president’s nominee, however, though the public relations fight might well favor the president.
And the stakes are high: the court is expected to rule on cases involving the above mentioned EPA Clean Power Plan, labor rights, affirmative action, political representation and legal challenges to the Affordable Care Act to name a few. Two other facts are critical here: 1) 4-4 tie votes, if Scalia’s replacement is not confirmed, would maintain the lower courts’ rulings, so in the case of the EPA Clean Power Plan, the lower court’s original ruling would be implemented and the EPA plan would go into effect; 2) most of the country is governed by appeals courts dominated by Democrats, so many of these controversial cases would be decided by liberal circuit courts many of whose jurists have been appointed by Obama.
As for average times it has taken the Senate to confirm a Supreme Court nominee, here’s a recent countdown: 87 days for Obama’s nomination of Elena Kagan, and 66 days for his nomination of Sonia Sotomayor; 82 days for President George W. Bush’s nomination of Samuel Alito Jr, a total of 62 for John G. Roberts Jr., while Harriet Miers’ nomination was withdrawn after 21 days; 73 days for President Bill Clinton’s nomination of Stephen Breyer and 50 days for his nomination of Ruth Bader Ginsburg. Among the longest in recent times was President H.W. Bush’s nomination of Clarence Thomas (99 days) and 69 days for David Souter. Even the controversial nomination by President Ronald Reagan of Robert Bork was finally rejected after 114 days.
Throughout the nation’s history, the Senate has never taken more than 125 days to vote on a successor. President Obama’s term expires in 342 days as of this past Sunday. For the Republicans to play politics with the courts is not likely to sit well with voters in a contention election season, and could play into the hands of the president, the Democrats chances to regain the Senate and the Democratic nominee.
Angelo S. Lynn