With speculation over the next Supreme Court nominee running rampant, potential nominees’ records on environmental issues and other hot-button topics are drawing scrutiny.
Whoever replaces the late Justice Antonin Scalia stands to play a major role in legal battles over high-stakes environmental regulations including U.S. EPA’s Clean Power Plan, the Clean Water Rule and tightened air restrictions on ozone. Beyond potentially casting decisive votes on President Obama’s environmental legacy in the short-term, the new justice is certain to influence environmental law for decades to come.
It’s uncertain whether Obama’s pick to replace Scalia, who died last weekend, will get confirmed by the Republican-led Senate that’s already announced its opposition to an election-year confirmation (see related story). But Obama has said he’ll nominate someone for the coveted seat, whose next occupant could tip the divided court’s ideological balance.
As rumors fly about Obama’s short list, legal experts are digging into the records of the judges and politicians who have been mentioned as possible picks, hunting for clues about what their nomination might mean for environmental issues.
Many high-court prospects "seem unlikely to have a strong bias in either direction" on environmental issues, said Todd Aagaard, vice dean and professor at Villanova University School of Law. "Few federal judges these days have a strong outcome-oriented approach that favors environmental advocates," he added.
Judges appointed by the Obama and Clinton administrations have shown "a willingness to accept environmental regulation" when the agency has properly documented its decision, Aagaard said. "While all of the nominees would give environmental advocates a fair shot, I doubt any of them would automatically incline to favor the ‘pro-environmental’ side in a case."
Jonathan Adler, a professor at the Case Western Reserve University School of Law, said he expects Obama to select someone with a "moderate reputation," given the steep political hurdle of getting a nominee confirmed this year.
"That doesn’t mean," Adler said, "that he’s going to pick someone that would actually be a swing vote."
Here’s a look at some of the possible nominees’ records on the environment:
The U.S. Court of Appeals for the District of Columbia Circuit judge is on just about every list of hot prospects for the nomination. He’s young — 48 years old — which means Obama would be picking a nominee who could affect the court for several decades. The Senate confirmed him by a vote of 97-0 in 2013 for the D.C. Circuit, which could make it tough for the chamber to now oppose his nomination to the high court. He would also be the first Indian-American to serve on the court.
Credentials: Prior to being picked for the D.C. Circuit, he was principal deputy solicitor general during the Obama administration. He previously worked for the law firm O’Melveny & Myers LLP and was a law clerk for former Supreme Court Justice Sandra Day O’Connor.
Environmental footprint: Since he’s a relative newcomer to the D.C. Circuit, Srinivasan doesn’t have a long track record when it comes to environmental opinions. He is on the three-judge panel slated to hear oral arguments over the administration’s Clean Power Plan. That panel also refused requests to block the rule while the litigation went forward.
The Obama administration’s 56-year-old African-American attorney general is another widely named possibility. Supreme Court expert Tom Goldstein called Lynch "the most likely candidate" in a blog post this week. "I think the administration would relish the prospect of Republicans either refusing to give Lynch a vote or seeming to treat her unfairly in the confirmation process," Goldstein wrote. "Either eventuality would motivate both black and women voters."
Credentials: Before she was sworn in as attorney general last April, Lynch was U.S. attorney for the Eastern District of New York during both the Obama and Clinton administrations. From 2002 until 2010, she was in private practice at Hogan & Hartson (now Hogan Lovells) in the firm’s New York office.
Environmental footprint: Lynch is best known for her work on criminal cases, not environmental issues. But as the government’s top attorney, she now oversees all of the work at the Justice Department, including ongoing environmental cases involving the administration. If she were on the Supreme Court, she may recuse herself from all the major environmental cases the agency is now working on, including battles over the Clean Power Plan and the Clean Water Rule.
The 48-year-old judge on the 9th U.S. Circuit Court of Appeals is seen by many as an attractive pick for Obama. He’s African-American, and Goldstein wrote that Obama may be "very tempted to appoint a black Justice to the Court." He was also confirmed by the Senate in 2012 by a vote of 61-34, Golstein wrote, with the support of nine Republicans. "That gives the Administration considerable ammunition to argue publicly that Republicans, by refusing to process the nomination, are blocking someone who is recognized to be qualified."
Credentials: Prior to his 2011 nomination to the 9th Circuit, Watford was a partner at Munger, Tolles & Olson in Los Angeles. He previously worked at Sidley & Austin’s Los Angeles office and was assistant U.S. attorney in the Central District of California. He clerked for 9th Circuit Judge Alex Kozinski, a Reagan appointee, and then for liberal Justice Ruth Bader Ginsburg on the Supreme Court.
Environmental footprint: Watford hasn’t been on the court long enough to develop an extensive environmental track record, according to legal experts. In one 2013 opinion, Watford dissented from two other judges in an opinion that sided with the Interior Department in a case over a California oyster farm’s lease (E&ENews PM, Sept. 3, 2013).
The 52-year-old D.C. Circuit judge is seen as another rising legal star in Democratic legal circles. She was confirmed by the Senate by a vote of 56 to 38 to join the appeals court that’s often seen as a feeder to the Supreme Court.
Credentials: Millett led the Supreme Court and appellate practices at Akin Gump Strauss Hauer & Feld and worked for 11 years as an assistant in the solicitor general’s office. She was previously on the appellate staff of the Department of Justice’s civil division and clerked for 9th Circuit Judge Thomas Tang. Her court biography also notes that she holds a second-degree black belt in taekwondo.
Environmental footprint: On the D.C. Circuit, Millett has heard a series of environmental cases. In 2014, she penned an opinion that struck down two George W. Bush-era hazardous waste policies that greens argued were too lax (Greenwire, June 27, 2014). Also in 2014, she wrote an opinion rejecting an electronic component maker’s effort to remove its controversial former North Carolina manufacturing facility from EPA’s Superfund cleanup program (Greenwire, July 8, 2014).
California’s Democratic attorney general is frequently cited in the nomination rumor mill. She’s 51 and was the first woman to be elected to be California’s top attorney. She’s the daughter of an Indian mother and a Jamaican father. Goldstein wrote of Harris that if she "wanted the job, I think it would be hers." But he doesn’t think she does, given that she’s the "prohibitive favorite" to win retiring Sen. Barbara Boxer’s seat in 2016 and is "well positioned" to potentially be president herself.
Credentials: She was first elected attorney general in 2011 and re-elected in 2014. She served two terms as San Francisco’s district attorney, was head of the San Francisco city attorney’s division on children and families, and led the career criminal unit in the San Francisco district attorney’s office.
Environmental footprint: Harris has been helping to lead states’ defense of the Clean Power Plan; California is one of 18 states backing EPA in the lawsuits challenging the rule. Adler of Case Western predicts that "she would be a very liberal justice," although she might view some issues differently as a judge instead of an advocate. She may take the position as a judge that states should get a lot of leeway when it comes to whether state-level climate policies are pre-empted, Adler said, which is a big issue on the high court’s horizon.
The D.C. Circuit’s 63-year-old chief judge has long been named as a possible Obama Supreme Court nominee, but the fact that he’s older than many of the other prospects could now count against him.
Credentials: First appointed to the court by President Clinton in 1997, Garland has been chief judge since 2013. He previously held several high-ranking Justice Department jobs, including principal associate deputy attorney general from 1994 until 1997. He was also a partner at the law firm Arnold & Porter and clerked for former Supreme Court Justice William Brennan Jr.
Environmental footprint: Recently, Garland was on the split panel that upheld EPA’s mercury rule for power plants. That decision was rejected by the Supreme Court and sent back to the D.C. Circuit, and Garland was among the judges that agreed to leave EPA’s rule in place while the agency tweaks the problems flagged by the high court (Greenwire, Dec. 15, 2015). Adler said of Garland that "he tends to be more deferential to agencies" than some of his conservative colleagues, "but he’s no rubber stamp."
The 50-year-old Vietnamese-American 9th Circuit judge has also been in the mix of potential nominees for several years. She sailed through Senate confirmation in 2012 by a vote of 91-3.
Credentials: Nguyen was a U.S. district judge in the Central District of California in Los Angeles prior to her nomination to the 9th Circuit. She was previously a judge on the Superior Court of the County of Los Angeles and worked in the U.S. attorney’s office in the Central District of California.
Environmental footprint: In 2014, Nguyen authored the 9th Circuit opinion siding with the Obama administration and rejecting an Alaskan moose hunter’s bid to use his hovercraft in a national refuge (E&ENews PM, Oct. 6, 2014). An appeal in that case is now pending before the Supreme Court. In another 2014 decision, she wrote the court’s unanimous decision throwing out an EPA air pollution permit for a proposed California natural gas power plant, finding that it did not meet the agency’s air quality standards at the time it was issued (Greenwire, Aug. 13, 2014). Last year, she sided against environmentalists in a decision backing the Interior’s approval of Royal Dutch Shell PLC’s oil spill response plans for drilling off Alaska’s shores (Greenwire, June 12, 2015).