There’s a shot the replacement for the late Supreme Court Justice Antonin Scalia will be made by the next president, and the nominee’s leanings on environmental issues — and everything else — will be shaped by the party that wins the White House.
Legal and political analysts are zeroing in on President Obama’s forthcoming nominee for the coveted seat on the high court, but it’s uncertain whether that candidate would be allowed confirmation hearings or overcome entrenched opposition in the GOP-led Senate. Obama’s nominee may languish through early next year if the president’s opponents can block confirmation until the clock runs out.
If a Democrat wins, it’s likely that the same list of judges and politicians being considered now by the White House would get a look from Democratic presidential candidates Hillary Clinton or Bernie Sanders. They could even renominate Obama’s failed nominee. A Democratic nominee could broadly be expected to uphold the Obama administration’s major environmental initiatives and veer the court to the left (Greenwire, Feb. 16).
But if a Republican takes the White House, the GOP president would likely be drawing from the opposite side of the ideological spectrum. On environmental issues, a GOP nominee would likely preserve the court’s status quo by taking a more skeptical stance toward environmental rules and siding with the court’s conservative wing, as Scalia often did.
Even if an Obama pick gets confirmed before his term runs out, the next president could name one or more new justices to the high court. Before Scalia’s death, Clinton penned an op-ed last month in The Boston Globe, noting that three justices — Scalia, Ruth Bader Ginsburg and Anthony Kennedy — would be older than 80 come the election this November. "The next president could easily appoint more than one justice," she wrote.
The GOP presidential candidates and conservative legal experts are already buzzing about some of the possible contenders.
The prospects would certainly vary, depending on which of the remaining candidates becomes the Republican nominee (and, of course, on whether they win in November). But as with the Democrats, Republicans have a list of go-to names that are often cited as up-and-comers in the legal world and potential Supreme Court picks. They include a roster of judges and lawyers revered by critics of government regulations but feared by greens.
Several leading Republican candidates have already given hints about the kind of judges they’d like to name to the court.
Sen. Ted Cruz (R-Texas) told Bloomberg last year that he’d appoint "rock-ribbed conservatives" to the court who have "a long paper trail as principled conservative jurists."
Cruz was previously Texas’ chief litigator in the Supreme Court; he also clerked for former Supreme Court Chief Justice William Rehnquist and 4th Circuit Court of Appeals Judge J. Michael Luttig in the 1990s.
Republican Sen. Marco Rubio (R-Fla.) said last summer, "The next president of the United States must nominate Supreme Court justices that believe in the original intent of the Constitution and apply that. We need more Scalias and less Sotomayors," referring to Obama appointee Justice Sonia Sotomayor, MSNBC reported.
Donald Trump has been criticized for suggesting that he’d appoint his sister, Maryanne Trump Barry, who’s a senior judge on the Philadelphia-based 3rd U.S. Circuit Court of Appeals. Barry was appointed to the court by President Clinton in 1999. Trump said this week that he was joking about his sister, and he pointed to 7th U.S. Circuit Court of Appeals Judge Diane Sykes and 11th U.S. Circuit Court of Appeals Judge William Pryor as possible nominees, The New York Times reported.
Here’s a look at of a few of the names in the Republican mix:
The 51-year-old judge at the U.S. Court of Appeals for the District of Columbia Circuit is a rising star in conservative legal circles and is regularly named as a favorite Republican pick for the high court. He’s also been a major player on environmental issues and has emerged as one of the most powerful critics of Obama EPA regulations.
Kavanaugh has served on the D.C. Circuit since 2006 after a confirmation battle that dragged out for several years. He was previously assistant to President George W. Bush and the White House staff secretary. He helped the Bush White House fill judicial posts with conservatives and was one of the authors of the "Starr Report" issued in 1998 that argued for President Clinton’s impeachment. He was a partner at Kirkland & Ellis LLP and clerked for Justice Kennedy.
On the D.C. Circuit, Kavanaugh has hammered the Obama administration in recent opinions rebuffing some of its most high-profile air pollution rules. In 2012, after the D.C. Circuit upheld a suite of EPA’s early greenhouse gas regulations, he penned his own lengthy opinion dissenting from his colleagues, arguing that EPA "exceeded its statutory authority."
In another high-profile clean air case surrounding hazardous air pollution from power plants, Kavanaugh again dissented from his colleagues. When the D.C. Circuit upheld EPA standards to curb mercury and other hazardous pollution from power plants, he dissented, saying EPA had failed to properly consider costs (Greenwire, Oct. 13, 2015).
In addition to Trump’s recent shout-out on the campaign trail, Sykes’ name has been circulated by court watchers in recent years as a possible GOP nominee.
Sykes, 58, has been a judge on the Chicago-based 7th U.S. Circuit Court of Appeals since 2004 after she was nominated by Bush. She previously served on the Wisconsin Supreme Court and the Wisconsin Circuit Court in Milwaukee County. She was listed as a member of the GOP’s judicial "farm team" in a 2014 story by New Yorker writer Jeffrey Toobin.
Another Trump favorite, the 53-year-old judge has served on the Atlanta-based 11th U.S. Circuit Court of Appeals since 2004 after being nominated by Bush. He was previously Alabama’s attorney general and deputy attorney general. He was also an adjunct professor at Samford University’s Cumberland School of Law.
In 2010, Pryor was part of a judicial panel that rejected a lower court’s order that then-EPA Administrator Lisa Jackson personally appear in court to answer to complaints about the agency’s Everglades cleanup efforts (Greenwire, Oct. 29, 2010).
Environmentalists opposed Pryor’s confirmation to the federal court, citing briefs that he filed as Alabama’s AG asking the federal courts to strike down portions of Clean Water Act and the Endangered Species Act (E&E Daily, June 10, 2005).
One of the names floating around as a Republican prospect is helping to lead the legal battle against the Obama administration’s signature climate change rule. Keisler, 55, is an attorney at Sidley Austin LLP who was nominated in 2006 by Bush to fill Supreme Court Chief Justice John Roberts’ seat on the D.C. Circuit. His nomination was blocked by Senate Democrats.
Keisler held top Justice Department posts in the Bush administration, including serving as acting attorney general, and he was previously associate White House counsel during the Reagan administration.
He’s viewed as a powerful legal advocate for industry interests and has argued against environmental regulations in several recent Supreme Court cases. He’s now representing industry groups including the U.S. Chamber of Commerce and National Association of Manufacturers in the massive litigation challenging EPA’s limits for power plants’ greenhouse gas emissions (Greenwire, Oct. 28, 2014).
The Bush administration solicitor general is now a partner at Bancroft PLLC. He has argued more Supreme Court cases since 2000 than any lawyer in or out of government, according to his firm.
Before becoming solicitor general, he was acting solicitor general and principal deputy solicitor general. He was chief counsel to the Senate Subcommittee on the Constitution, Federalism and Property Rights and clerked for Scalia on the Supreme Court.
He’s represented energy industry clients in several high-stakes cases that have been argued before the Supreme Court or sought the court’s review, including a case argued this term where he represented the electric power industry in a challenge to a federal rule incentivizing energy conservation.
The partner at Gibson, Dunn & Crutcher is another Bush pick for the D.C. Circuit whose confirmation was blocked by Senate Democrats.
Estrada was previously assistant to the solicitor general, assistant U.S. attorney and deputy chief of the appellate section in the U.S. attorney’s office in New York’s southern district. He’s argued 22 cases before the Supreme Court and briefed many others, according to his firm. He also clerked for Justice Kennedy.
Several other names that have been floated as possible Republican picks include 8th U.S. Circuit Court of Appeals Judge Steven Colloton, 10th U.S. Circuit Court of Appeals Judge Neil Gorsuch (son of former Reagan-era EPA Administrator Anne Gorsuch Burford), 6th U.S. Circuit Court of Appeals Judge Jeffrey Sutton, 5th U.S. Circuit Court of Appeals Judge Jennifer Walker Elrod and Texas Supreme Court Justice Don Willett.