By Rich Heidorn Jr.
WASHINGTON — The death of conservative Supreme Court Justice Antonin Scalia likely improved the odds that the Clean Power Plan will survive court challenges.
Four days before his death Saturday, Scalia was in the majority in the court’s 5-4 vote to stay the EPA rule pending legal challenges.
Many observers took the stay as a sign that the court would likely reject the plan — which relies on a novel interpretation of the Clean Air Act — when it hears it on the merits.
But without a ninth member, a 4-4 split would prevent the court from overturning the D.C. Circuit Court of Appeals if it backs EPA. (If the lower court rejects the rule, of course, there would be no chance for the liberal justices to save it without help from another justice, such as swing vote Anthony Kennedy.)
While Democrats want President Obama to appoint Scalia’s successor, Republicans said the appointment should come after the presidential election. The GOP, which controls the Senate 54-46, could deny Obama the 51 votes needed for confirmation.
Senate Majority Leader Mitch McConnell (R-Ky.) and Judiciary Committee Chairman Charles Grassley (R-Iowa) said Saturday that it should be Obama’s successor who replaces Scalia.
Backfire?
Denying Obama the chance to add a fifth liberal to the court has implications for a number of divisive and high profile cases facing the court, including abortion, affirmative action and immigration. But it could backfire on efforts by McConnell and others to block the Clean Power Plan.
The three-judge D.C. Circuit panel appointed to hear the CPP appeal — which had earlier rejected a stay request — includes two jurists appointed by Democrats. (One of them, Obama appointee Sri Srinivasan, has been widely mentioned as a possible Supreme Court nominee himself.)
The D.C. Circuit will hear oral arguments June 2 and is expected to rule this fall. It would be up to the Supreme Court to decide first whether to hear an appeal of the D.C. Circuit’s ruling and second to rule on the merits.
In a 4-4 deadlock, “there is no majority for a decision and the lower court’s ruling stands, as if the Supreme Court had never heard the case,” wrote attorney and SCOTUSblog publisher Tom Goldstein. “Because it is very unlikely that a replacement will be appointed this term, we should expect to see a number of such cases in which the lower court’s decision is ‘affirmed by an equally divided court.’”
Goldstein noted that the court was also limited to eight members during Chief Justice John Roberts’ first term. To avoid equally divided rulings, he said, the court “decided a number of significant cases by instead issuing relatively unimportant, often procedural decisions.”
In televised remarks Saturday, Obama promised he will nominate Scalia’s successor before leaving office. After praising Scalia as a “brilliant legal mind,” Obama said he will nominate a new justice “in due time.”
“There will be plenty of time for me to do so and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote,” he said.
Earlier in the day, McConnell had taken the opposite stance. “The American people should have a voice in the selection of their next Supreme Court justice,” he said. “Therefore, this vacancy should not be filled until we have a new president.”
McConnell famously vowed in 2010 that his top priority would be to deny Obama a second term. The coal-state senator took a similar stance when EPA released its final version of the Clean Power Plan, advising states to ignore the rule. (See related stories, States Evaluating Options Following Clean Power Plan Stay, EEI: Power Sector Carbon Reductions to Continue Despite CPP Stay.)
Precedent
Republicans cited historical precedent in contending Scalia’s replacement should be chosen by Obama’s successor. “The fact of the matter is that it’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year,” Grassley said.
In 1988, however, McConnell and Grassley voted to confirm Justice Anthony Kennedy, appointed by President Ronald Reagan during his last year in office. Kennedy was confirmed 97-0 by the Senate, which was then controlled by the Democrats. Kennedy’s confirmation ended a seven-month vacancy on the court, coming after the Senate rejected Robert Bork, and a second nominee, Douglas Ginsburg, withdrew.
If Republicans have their way, Scalia’s seat would likely be open for more than a year, a gap Senate Minority Leader Harry Reid (D-Nev.) called “unprecedented in recent history.”
From 1967 through 1994, according to a 2005 Congressional Research Service report, 12 of 19 court nominations were pending in the Senate for more than nine weeks before receiving final action.
CRS says the Senate has confirmed all but 36 of 160 Supreme Court nominees since 1789. Both of Obama’s previous nominees, Justice Sonia Sotomayor (August 2009) and Justice Elena Kagan (August 2010), were confirmed — albeit when Democrats controlled the Senate.
Scalia’s replacement has already become an issue in the presidential race, with Republican candidates calling for a delay and Democrats backing Obama.
Electoral politics also could be at play if Obama gets a nominee to a confirmation vote. Twenty-four Republican senators are seeking reelection including those in the swing “purple” states of Wisconsin, Pennsylvania and Illinois, where blocking a nominee could undermine their appeal to Democratic voters.
Obama would need at least 14 Republicans to compile the 60 votes to force a vote in event of a filibuster. In 1968, the Senate refused to vote on President Lyndon Johnson’s chief justice nominee Abe Fortas. The seat was filled by Johnson’s successor, President Richard Nixon, who nominated Warren Burger.
Political fallout over Scalia’s replacement also could poison attempts to pass a bipartisan energy bill this year. (See Utilities Make Their Case to Skeptical Wall Street.)
