Attorneys vet Supreme Court nominee Alito's background on environmental issues

As the Senate prepares for confirmation hearings next year on Supreme Court nominee Judge Samuel Alito, two leading attorneys take a closer look at Alito's extensive legal history on the 3rd U.S. Circuit Court of Appeals. Mark Levy, an attorney with Kilpatrick Stockton and a longtime friend of Judge Alito, and Glenn Sugameli, an attorney with Earthjustice, discuss Alito's record on the Commerce Clause, environmental groups' standing to bring lawsuits against polluters, and the political battles ahead during the confirmation process.


Brian Stempeck: Hello and welcome to OnPoint. I'm Brian Stempeck. Joining us today to talk about President Bush's next Supreme Court nomination is Mark Levy, an attorney with Kilpatrick Stockton. Also with us is Glenn Sugameli from Earthjustice. Guys thanks for being here today.

Glenn Sugameli: Our pleasure.

Mark Levy: Thank you.

Brian Stempeck: I know Judge Alito has a lot of background. He's written, personally, over 300 decisions. I'm sure you're both still combing through a lot of the cases. Glenn, give us your first take on Judge Alito so far, from what you've gleaned from his past experience.

Glenn Sugameli: Well at Earthjustice we express serious concerns based on three of his opinions in constitutional grounds. Two of them were on the same issues that we expressed concerns about Chief Justice Roberts' nomination. We did not oppose him, but we expressed concerns on his views on access to courts, their standing and also on his views on the commerce clause, the scope of the Congress's constitutional authority to protect the environment. On both of those issues Judge Alito has opinions that are disturbing. On the commerce clause he was in dissent arguing that Congress did not have the power to ban possession of machine guns. And on the other case it was a standing decision under Clean Water Act, was essentially overturned by the Supreme Court in the [Friends of the Earth v. Laidlaw] case on a 7-2 vote with only Scalia and Thomas in dissent a few years afterwards. So that was our initial view.

Brian Stempeck: Now how far along are you? I mean has Earthjustice come out yet and said you're going to oppose this nomination?

Glenn Sugameli: No, we have not yet. We're still looking at the opinions. There's another case, W.R. Grace, which I think is probably at least as troubling. It's a statutory case, but what it involved was EPA's emergency action under the Safe Drinking Water Act to act on a toxic plume coming from a fertilizer plant. And he joined a 2-1 opinion overturning the emergency action by EPA over a very strong dissent from a Reagan appointed judge saying, wait a second. There's a very highly deferential standard of review here that basically EPA did take a reasonable action. They should have been upheld. And just because theoretically there might've been something else they could have done a little differently, that's not the standard.

Brian Stempeck: Now Mark just look broadly for just a second. We'll get into the cases in a moment, but you went to law school with Judge Alito.

Mark Levy: I did.

Brian Stempeck: And you've known him for quite some time. Give us your broad sense of where he stands on these issues and how he'll make a new addition to the court.

Mark Levy: I think there are two different issues, one that we kind of started to talk about as sort of the politics of the bottom line results. And we'll come back to that in a little while. The other is whether he's qualified by virtue of intellect, integrity, judicial temperament, for the Supreme Court. My view is that there's no question that he's eminently qualified in that sense for the Supreme Court. People may disagree about his substantive results and if the Senate feels that that's a sufficient ground to vote against him then they will vote against him. But I don't think there's any real argument about his qualifications under traditional standards. I think he's been a very good judge even though he and I would disagree about a lot of legal principles and other things. He's what I like to call a lawyer's judge. He comes to the cases, he reads the law. He looks at the facts in the record. He understands the arguments on both sides, including the arguments against the position he's going to take. And he comes to a reasoned decision that's well written. I've been interested to see that so many -- I think, uniformly the judges in the 3rd Circuit where he sits, both the current judges and the past judges, have come out in favor of not only that he's a smart fellow and a nice guy, but they think he really is well suited to the Supreme Court.

Brian Stempeck: Now let's talk about some of the cases that Glenn just brought up. I guess the one major case is this gun case, talking about the commerce clause of how that affects, it doesn't really have much to do with the environment on space, but the commerce clause of course is the background for a lot of major environmental laws. How do you think Judge Alito is going to rule on the commerce clause? This was a major issue during John Roberts' confirmation hearings as well.

Mark Levy: I think it's hard to know from one case. The machine gun case there we're talking about now came out shortly after Lopez, where the Supreme Court had invalidated the Gun Free School Zone Act. For the first time in 60 years they had struck down a statute on commerce clause grounds. There's been a lot of developments since then. I actually disagree with Lopez and Morrison and I disagree with Sam's dissent in that case, but I don't think it was outside acceptable bounds of judicial decision making. The principle disagreement, as I read the case, between the majority and the dissent was whether Congress had made the requisite findings to support their power under the commerce clause of the Constitution, an important issue, but not one that radically divided the court. So I wouldn't read too much into one case. But it's a fair ground for the senators and the public to ask questions and hear what Sam has to say.

Brian Stempeck: Glenn is that the main concern right now of the environmental movement, is looking at the commerce clause issue? It seemed like that was the main thing that was talked about during the Roberts' confirmation hearings, looking at Endangered Species Act case. Is that basically a similar argument going forward here?

Glenn Sugameli: Well, it's one of the major arguments. And one of the reasons it is a concern is because the court has been closely split on those issues in recent years. And if you look at the fact the Roberts came on the court and very shortly thereafter the Supreme Court agreed to review two cases under the Clean Water Act that raised the issue of whether Congress has the constitutional authority to protect rivers and streams and wetlands upstream that eventually flow into the Mississippi River and the Gulf of Mexico, etc. That's an issue they had rejected before. They accepted it shortly after Roberts joined the court. Roberts has also at least one case that's disturbing on that issue. Those cases will be decided by the end of next June, during this term. And there's a report this week that Washington Legal Foundation is saying that it would seem to me that based on the machine gun case opinion that he would be on our side on environmental grounds. In other words, anti-environmental vote. It doesn't mean it's absolutely true. But it is true that circuit after circuit had already rejected the constitutional claims involving the machine guns before he ruled and some in very much the same timeframe. And then afterwards, circuit after circuit after circuit rejected it again. So that he really was somewhat isolated in that. And it really was two issues. As Mark pointed out there was the factual finding, there's also, he seems to say that this is an economic activity, which also has some implications that could be much broader. And the majority was pretty strong. I mean they had language where they said there's nothing in the Lopez case that requires Congress or the executive to play show and tell with the federal courts at the peril of invalidating a congressional statute. So it's certainly troubling. It's something we want to take a close look at. It's something that I think the Congress should really fully ask about. And which Senator Specter and a number of others have expressed very strong concerns about before.

Mark Levy: There's no question that judges feel strongly about this issue, as well they should. It's very important across a wide range of substantive areas. To show that it's complicated, subsequent to this era of litigation over the Machine Gun Act, the 9th Circuit, a year or two ago in an opinion by Judge Kaczynski, a very well respected conservative judge in California, struck down the statute on similar grounds. That was vacated by the Supreme Court and sent back after the medical marijuana, the [Gonzales v. Raich] case. So this is something that continues to divide judges and courts. Again, it's not an opinion I agreed with Sam on, but I do think it's within the bounds of acceptable judicial decisionmaking.

Brian Stempeck: So talk about these issues. I mean there's been a lot of talk about Sandra Day O'Connor being a swing vote on the court. When you're talking about commerce clause or having standing to bring these cases, it's a lot of the arguments the environmental groups are bringing up. Is Judge Alito that much different than Sandra Day O'Connor when it comes to environmental issues?

Mark Levy: I don't think we know yet. As you said before we're early in the confirmation process. The nomination was announced four or five days ago. He's got 300 opinions on the 3rd Circuit. He's been on panels that have decided 3700 cases. He was in the Justice Department for a long time. There's still a lot to learn about him and his judicial philosophy and views. The commerce clause is a very tricky area. In the medical marijuana case I mentioned a moment ago the court upheld the federal action and an opinion that Justice Scalia supported and Justice Kennedy supported. Justice O'Connor was on the other side. So to call somebody a conservative doesn't really reveal very much when you drill down into specific issues.

Brian Stempeck: Glenn, your thoughts on how Judge Alito might be different from O'Connor?

Glenn Sugameli: Well, again I agree with what Mark said. We're still looking at the cases. Certainly on the commerce clause it is an issue, where in the Raich case for example Justice O'Connor was on the other side. But in terms of adding up the votes you also have, as I said, Chief Justice Roberts also has some indications that he might be of concern on that area as well. And if you get a constitutional ruling there's very little Congress can do to overturn it. So it's absolutely essential that we have a justice who's fair and open minded and impartial and doesn't come in with an agenda or a view of the Constitution that says Congress does not have established authority to enact a number of laws that have been on the books for a long time that are essential to protect the environment. That's one very important issue. It's also very important to look at the cases that come down as Professor Cass Sunstein started to do and say when the court divides where does Judge Alito come out? And I think those the type of cases that typically go up to the Supreme Court. They're the harder cases. They're the cases where the judges don't agree on the panel or with another circuit. And at least Professor Sunstein's initial view of that is that in those cases, fairly consistently, Judge Alito comes out on the conservative side or the business side or the side against the environment or the individual, etc. And that's certainly true with some of the cases we've looked at already, including the W.R. Grace case involving, again, very critical action to protect the drinking water supplies.

Mark Levy: Let me come back to that W.R. Grace case. And this isn't a place to have a law school seminar on environmental law, but I do think we need to be careful. As I said as a judge Sam has been on 3,700 candles rendering decisions. OK? So that's an awful lot. And he's written about 300, so you can see he's been a vote in many cases where he didn't write an opinion. In that case, as I recall it, the opinion was actually written by Judge Ambro, who was a Clinton appointee. So to the extent you're trying to generalize in kind of crude terms Sam joined the more liberal vote in that case and disagreed with the Reagan appointee. Another case, there was a Clean Air Act case that Glenn knows about where Sam wrote the opinion. He was joined by Judge Becker, who's a very liberal judge, and they upheld the position of the Clinton administration, Justice Department and EPA. So it's very hard to pigeonhole a judge who's got a record as long as Sam's and say he's monolithic. He's uni-dimensional. He's going to come out this way and we can count on it. I think the world is much more complex than that.

Brian Stempeck: Now stepping back and looking at the process a little bit. We just saw that they're going to have the confirmation hearings starting in January now. So President Bush isn't really going to get his wish to have this done by the end of the year. As these confirmation hearings go forward environmental issues probably aren't going to be the top-tier issue that's talked about here compared to abortion and other things. But basically my question is, with Democrats basically on the attack right now it seems like there's already a lot of opposition to this nomination. How much is going to have to do with Judge Alito's record and how much is going to have to do with the fact that I think a lot of people are sensing weakness from the White House right now?

Mark Levy: That's a very political question. And my clients don't pay me to prognosticate on politics. I think it is going to be a fight. I think the Democrats are going to scrutinize this very carefully, as they should. My hope is that it won't degenerate, however controversial the nomination is, that it will remain above partisan politics. But we'll have to see. I think you're right that the environmental issues as such are not going to be foursquare in the hearing. On the other hand, there are a lot of issues that touch the environmental area a little bit. We've just been talking about the commerce clause. I think issues of statutory construction, which sometimes come up in environmental cases, will be very important. Sam's judicial philosophy, his view of stare decisis, there are all kinds of things that kind of cut across substantive issues. So the environmental cases will be represented in that sense even if they're not the focus.

Brian Stempeck: Glenn, your thoughts on how the confirmation process is going to move forward?

Glenn Sugameli: I think that there will be focus on environmental issues as environmental issues, but also in terms of, as Mark was saying, the cross-cutting issues. The commerce clause is a good example of that. Already Senator Chafee, and it isn't just Democrats, Senator Chafee has highlighted three areas of concern. And one of them is the commerce clause and the scope of the federal authority to protect the environment and a whole range of other things. So there really are issues that come up again and again. I've headed Earthjustice's judicial selection project for about four years now. We have extensive materials on our Web site at on particular nominees and on the overall process. There is some of those nominees, and one in particular, William Myers of the 9th Circuit, where essentially the environment was the reason why he was blocked by a filibuster and he was left out of the deal. So he's continuing to be filibustered right now. And it certainly has been a critical issue with a number of others. Obviously we have, again on, we have senator statements, editorials, lots of things that recognize that over and over again environment is a major issue in judicial nominations. For a good reason, because so much of environmental protection comes down to whether an environmental law is upheld as constitutional and how it's interpreted and whether it's enforced. And what we're looking for is a judge who's going to take a reasonable approach to upholding and enforcing the law. We're not looking for some creative making up the law. We're looking for somebody who's going to reject outrageous industry claims and basically uphold and require that the law be enforced.

Mark Levy: I think we have to be realistic about the politics. We can't expect any nominee of this president, including Sam, to be a champion of environmental rights. There are those of us who wish that the elections had come out differently and elections matter, but the president gets to make his nomination now. The Republicans won the Senate so they're going to be heard on this issue. So I think we have to keep it in perspective about what is on the table here. In terms of the politics also, I found this very interesting from the hearings on John Roberts, Congress is very upset with the Supreme Court's rulings on the commerce clause. The Congress thinks it was scolded by the Supreme Court and told how to conduct its business even down to whether it has to make findings and how much evidence it needs in hearings. So this is not only about the substantive law and the statutes the Congress can or cannot enact in certain areas, it's also about Congress' relations with the Supreme Court in a very fundamental separation of powers way. So it will be interesting to see what the senators ask Sam about.

Brian Stempeck: All right. We'll let that be the last word. We're out of time. Mark, Glenn, thanks a lot for being on the show today.

Glenn Sugameli: Thank you very much, appreciate it.

Brian Stempeck: I'm Brian Stempeck. This is OnPoint. Thanks for watching.

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