Courts:

Legal experts gauge future for Supreme Court nominee John Roberts

As Senate lawmakers prepare to hear from Supreme Court nominee John Roberts, observers are combing his legal background to see how he might rule from the high court. How important is Roberts' dissent in a decision about the Endangered Species Act? What are his views regarding the U.S. Constitution's commerce clause, the backbone of federal environmental laws? And will Roberts' confirmation result in more business cases on the docket? Mark Levy, an attorney at Kilpatrick Stockton who has argued extensively before the Supreme Court, and Glenn Lammi, chief counsel of the legal studies division at the Washington Legal Foundation, explain their thoughts on President Bush's nominee.

Transcript

Colin Sullivan: Welcome to OnPoint. Joining us to discuss the John Roberts nomination to the Supreme Court are Mark Levy, an attorney at Kilpatrick Stockton, who has argued extensively before the Supreme Court, and Glenn Lammi, chief counsel of the Legal Studies Division at the Washington Legal Foundation. Gentlemen thank you both for joining us.

Glenn Lammi: Thank you.

Mark Levy: My pleasure.

Colin Sullivan: Mark, I'd like to start with you. There's some speculation and the speculation basically says that Roberts is somewhere to the left of O'Connor, but somewhere to the right of Rehnquist and Scalia. Is that true? Do you agree with that assessment first of all and what does that mean for the court's interpretation of environmental law going forward, if there is such a shift?

Mark Levy: I think it's almost impossible to know where John stands on these things and that will be the subject of the Senate's confirmation process, and we'll have to wait and see what turns up. I think that John probably is not to the left of O'Connor. He may be where O'Connor is. He may be to the right of O'Connor. I doubt he's in the Scalia Camp, but he's been a judge for only 20 months on the D.C. Circuit. He hasn't written that much and there are a lot of issues that he hasn't seen as a judge. So I think we're going to have to wait and see.

Colin Sullivan: If he does come somewhere in line with O'Connor's positions, what does that mean for environmental law going forward? Do you have any sort of take on that?

Mark Levy: Well if he's like O'Connor it won't change the law very much and I think a lot depends on what you mean by environmental law. There are many different areas. There is sort of the takings prong of it. There's administrative law. There are the regulatory statutes. So I'm not sure you can talk in general terms, but I do think that, in general, the court is probably going to move somewhat to the right, and I think that would include environmental issues, including things like standing and other doctrines that the conservatives care about.

Colin Sullivan: We'll get into specifics in a second, but first Glenn let's go to you. What's your response to the first question?

Glenn Lammi: I think he's going to be somewhere in between O'Connor and Rehnquist. I think he was very influenced, most likely, by his clerk time with Rehnquist. He is a very thoughtful judge. I think much in the same vein as O'Connor is careful in her interpretation of the law, careful to follow the facts, not go broadly outside of the parameters of the case. I think some of Judge Roberts' opinions on the D.C. Circuit have reflected that. I think that on environmental issues, as Mark said, I think it's kind of hard to tell. He has issued at least one significant opinion that's been discussed quite a bit, but he also represented the pro-takings side of a takings case in the Supreme Court. So he's sort of seen both sides.

Colin Sullivan: Both of you stated he doesn't have a long record, but one of the cases he was involved in was an [Endangered Species Act] dissent on a D.C. appeals court, in which he said, it was a case deciding that he said, quote, "A hapless toad that for reasons of its own lives its entire life in California." He ruled against essentially applying ESA. What do you think that means for ESA going forward, his interpretation of that case?

Mark Levy: I don't think that by itself means a whole lot. It really was a constitutional issue about Congress' authority under the commerce clause that happened by coincidence to arise in an environmental case and a number of environmental cases present the issue, but it really presented a different question on the merits. Again, it was only the dissent from the denial of rehearing en banc and his position could be read to say simply that he thought the panel's ruling was inconsistent with a decision in another circuit and inconsistent with the Supreme Court. Which are recognized grounds for the en banc or for the full court to convene. So I don't think we should read too much into it, of his view on the merit.

Colin Sullivan: So would you agree, much ado about nothing, about this hapless toad?

Glenn Lammi: I would also note that he says in the last paragraph of his five paragraph dissent that he wanted to give the parties another chance to look at the issue and possibly find other ways to find, not necessarily find for Norton, but to find ways to find the action constitutional under the interstate commerce clause. And he gave a citation to Judge Garland's decision, of the three judges, the three judge panel, which looked at other issues like tourism and things like that, that are sometimes used to create constitutionality in the context of interstate commerce. So no, I don't think it really reflects definitely how he's going to rule on those kinds of issues.

Colin Sullivan: So there are no implications for the Clean Water Act, for the Clean Air Act? Some environmentalists have come out and said they're concerned that this hapless toad quote means he has no respect for the nation's key environmental laws, like ESA, Clean Water Act, Clean Air Act, no?

Mark Levy: I think it's too early to tell. You can't tell from that dissent by itself. That doesn't mean he won't end up there, it just means that we can't predict that.

Colin Sullivan: Glenn, do you agree?

Glenn Lammi: I agree and I think it's a pretty broad extrapolation. Certainly if the view that was discussed in his five paragraph dissent, again, is one that goes forward then there might be some discussion of that, but I think it's the environmental groups looking for something to criticize him on and that's really all they've got right now.

Colin Sullivan: Well how is that going to resonate in the Senate? Do either of you have a take on that? I mean if there's not -- if there's Anita Hill that comes out in the Senate and we're left with things like the hapless toad, is there going to be opposition based on stuff like that?

Glenn Lammi: I don't think that's really something to oppose him on. I think it's very unfair to take one opinion, again, that's so short. It was his first opinion on the court, as some people have noted, and basically make that a whole doctrine of how he's going to apply the law in the context of environmental issues or the interstate commerce clause. I think it would be a real stretch. I could see it happening. It's one of those issues that people like to talk about and it has the cute hapless toad quote.

Mark Levy: I certainly hope and expect there won't be any Anita Hill issues in the confirmation process. I do think it's a fair ground for inquiry, to have him explain what his views are, not in any particular case, but on this general and important area of constitutional law. I saw today that Senator Schumer had submitted a long list of questions to John for discussion at the hearing and one of the principal categories had to do with federalism and Congress's power under the commerce clause. So I'm sure we'll see the Senate get into that.

Colin Sullivan: What about some of the interests he's represented in private practice? He's represented the National Mining Association. He's represented a group that was trying to limit nitrogen oxide emissions. Does that matter? Can you read into that? I mean he's doing that, you're an attorney, he's doing that in private practice. Does that mean anything about what his opinion might be on the Supreme Court?

Mark Levy: I don't think it does. First of all, he's been on both sides of a number of issues. He's represented antitrust plaintiffs and antitrust defendants for example, and the same in environmental and takings and other kinds of cases, but beyond that I don't think you can attribute a lawyer's position for a client to what that lawyer personally thinks. Lots of us filed briefs that we know we wouldn't accept if we were judges, the role and the responsibility in the legal system is different. I think it was Rumple who once said lawyers are taxis for hire. If they can pay the fare, they can ride in your taxi, and with some exceptions, that is largely true. So I think John was a lawyer representing clients.

Colin Sullivan: So Glenn, if that's true, how is the Senate Judiciary Committee really going to derive any sort of inside knowledge of what his opinions might be?

Glenn Lammi: Well, I think he's going to discuss what his theory of interpreting the Constitution is. What his thoughts are on what are the parameters of when you interpret a law. One of the big areas that I think is going to have an impact on environmental issues, it always does, is what kind of deference do you give to federal agencies in the D.C. Circuit, is the primary court for interpreting the applications of regulations and agencies interpreting Congress' will. He's been right down the middle on those cases. He's deferred to Congress in some cases. He's not deferred to Congress in some cases. So they might be able to glean something from that, but I think that looking at his practice as a lawyer, he didn't pick his cases to advance any kind of agenda.

Colin Sullivan: Now, so we can't derive what his position might be on global warming or takings cases or ESA going forward at all?

Mark Levy: I wouldn't think so, not from that and then that's not unusual. I mean we're not writing on a clean slate either. There have been judges being confirmed in modern times for a couple decades now and they go through the same process. There's a sort of dance that goes on between what the senators can properly ask and what the nominees can properly answer and what they can't. And there are lots of people sitting on the court who probably have virtually no environmental experience when they went on the Supreme Court.

Colin Sullivan: So turning to the politics of the situation then. We're going to have confirmation hearings probably the first week in September Arlen Specter has said. Do you feel like environmental groups would be better off sitting this one out if there's really not much there? I mean they're going to create some sort of opposition, but would they be better off -- I mean they might have a lot to lose here and Senate Democrats might have a lot to lose here if they do mount a pretty firm opposition against a nominee when there's really not much to sink your teeth into. What do you think about that? Who has the most to lose?

Glenn Lammi: Well I think that the interest groups are going to be active simply because that's what the interest groups do and their membership expects them to be involved. The press expects them to be active and I think they will be. Whether they have enough to really mount a strong offensive against John Roberts is a good question. I think their credibility might look a little strange and not necessarily a shot, but certainly be called into question if they hoist their entire argument on one five paragraph opinion that John issued when he was first on the D.C. Circuit. And certainly I think his judicial philosophy is going to be open for discussion. I think it's good that it be discussed and I hope as many people and groups are involved in the debate as possible. I think it raises the debate.

Colin Sullivan: Mark, what your take on the politics? Who has the most to lose here in this fight?

Mark Levy: Well, I agree with Glenn that it's good to have as much participation as possible in the democratic process here and elsewhere. John has been the nominee for a handful of days. It's very early in the process and I think it's premature to know what position people ought to take. We're all at a point now when we're trying to learn more about him and the confirmation process will disclose more information, and I think most of the Democrats on the Senate, from what I've read in the papers, have taken a kind of keep your powder dry. They're not committing to voting to confirm him, but they're certainly not opposing him yet. I think we're in a process where we need to learn more.

Colin Sullivan: It does look though that a lot of these pro-business, pro-industry groups have come out in support of his nomination. Can we make anything of that? Is that something that environmentalists should look at? Well, if pro-business groups support him, isn't that bad?

Mark Levy: I don't think so. I think the reason pro-business groups are supporting him is that he's a known entity. He's represented business groups in private practice for many years and done so very well and very successfully and I actually think that's an advantage that he brings to the court, the experience he has with the practical problems of business and complying with the law. He will understand what their legitimate concerns are and some of their practical problems, and I think that's a perspective that's not now on the court and hasn't been there for almost 20 years, since Lewis Powell retired. So I think he will broaden the court's perspective and base of experience because of his business law background.

Colin Sullivan: Glenn, what's your take on that?

Glenn Lammi: I agree. I think it's interesting to have a person from the small fraternity of lawyers, such as Mark, who excel in representing companies and other litigants before the Supreme Court. And his background involves not only businesses, but also individuals, states. He's argued on behalf of clients pro bono. He's done cases that I think just about any lawyer would be happy to have the chance to do. So I think he's had a very varied background. I think, like Mark has said, having a business perspective on the court is a big plus. I think it's important because it might even play into what kind of cases they take. He's one more vote for cases that maybe four other justices chose to take, but none of the other ones did because they really didn't get how important it was.

Colin Sullivan: Wouldn't it be more important for the Senate Judiciary Committee to focus on these kinds of issues rather than be completely obsessed with Roe v. Wade? What's your opinion on that? I mean the hearings are probably going to be all Roe v. Wade, all the time. Some of this stuff might come up, but environmental issues are really going to be off to the side. The hapless toad may come up in some context, but it's really going to be Roe v. Wade. What do you think about that process?

Mark Levy: I actually don't think it'll be all Roe, all the time. That's obviously going to be a central concern and well it should be. It's a controversial issue that people care deeply about, but I don't think it's going to be the only or the sole or the principal issue that the Senate will consider. I certainly hope it won't be. There's a lot more that the court deals with that's important to our country.

Colin Sullivan: Glenn, what do you think?

Glenn Lammi: Yeah, I think that it's important for people to realize that business cases, no matter how arcane they are, may affect every single citizen in the country. People are employed by businesses. People own stock in businesses. People have pensions in businesses and how those kinds of cases come out I think are just as critical to the country as how a gay rights case would come out or how an abortion case would come out, how a prayer in school case would come out. I think business issues are very undervalued in terms of their value to the American people, and I hope that the discussion of them, if they are focused on a bit more, makes people realize that.

Colin Sullivan: Assuming Roberts is confirmed and appointed before the October Supreme Court session starts, there aren't a lot of environmental cases on the docket this upcoming year, right now. What do you think the cases might be that Roberts would weigh in on in the future, short term future, next five years, something like that?

Mark Levy: In the environmental area?

Colin Sullivan: Yes.

Mark Levy: That's always hard to predict. The court, in a sense, reflects society. The issues that are controversial and disputed in society get litigated and they work their way up to the Supreme Court in due course. So five years from now we'll probably be dealing with issues there that aren't on anybody's radar screen now. I do think this issue about commerce clause authority and the basis to enact a lot of the national environmental laws will be one of those issues.

Colin Sullivan: Can you talk about what's at stake there?

Mark Levy: It's a very important issue. It applies significantly in the environmental area, but to other statutes, discrimination statutes, employment statutes, all kinds of things in the last 30 to 40 years have been based on Congress's commerce clause power. The Rehnquist court had begun to cut back on the accepted understanding of that. This term they seem to look in a slightly different direction in the medical marijuana point, the medical marijuana case, so we're at a point where the issue is not only important, but it's very hard to know where the court will be going with it.

Colin Sullivan: Glenn, would you agree the interpretation of the commerce clause, big issue going forward?

Glenn Lammi: I think it is definitely and it certainly underpins all of the ... most if not all of the environmental laws out there in terms of the U.S. government's authority to regulate wetlands and things that sometimes appear only in states, rather than in, you know, across borders and those kind of things. I did want to mention, a couple of cases that might be making their way to the court soon in the environmental area. One was decided very recently. It was EPA v. Massachusetts, which was whether EPA had authority to regulate CO2. That was just decided by the D.C. Circuit saying that EPA does not have the authority to do that. I don't know what the next step for the states is, but certainly one of the steps can be to go to the Supreme Court. There's also some very significant cases under the new source review provisions of the Clean Air Act. The government's lost a few of those cases very badly with liberal judges blasting the government for bringing the cases in the first place. So those are some that might make their way up to the court. You also have takings cases, which seem to be going in a different direction at the court. Those may work their way up and you might see things like that coming to the court soon, but those issues are becoming, seemingly, more settled. So the court may not be interested in those.

Colin Sullivan: So we're just about out of time, but if I can just get your prediction, are we going to see this nomination sail through in September and he'll be on the bench in October? Glenn?

Glenn Lammi: I would think it probably would be a somewhat easy process. I think that he's very good in dealing with the senators. He's very good. I think he'll be very good in the hearings. I don't know how much they have to shoot at him. It'll be contentious, as it always is, which, as Mark said, I think that's a good thing, as long as it's not personally contentious, based on the issues, but I think he'll be confirmed.

Colin Sullivan: Mark, your prediction?

Mark Levy: My clients don't pay me for my political prognostication. I do think that it will be a full and complete examination as it should be. My characterization is I think it will be a fight, but not a battle and certainly not a war.

Colin Sullivan: OK, Mark Levy, Glenn Lammi thank you both for joining us. Hope you come back. Join us tomorrow for another edition of OnPoint. Until then I'm Colin Sullivan for E&ETV.

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