Next Supreme Court justice could be swing vote on major environmental decisions

As President Bush considers his nominee to the Supreme Court, advocacy groups are gearing up for a heated confirmation battle. Social issues will no doubt dominate the debate about the next member of the high court. But both environmental groups and business lobbyists plan to ramp up their involvement as well. David Bookbinder, senior attorney with the Sierra Club, and Paul Kamenar, senior executive counsel for the Washington Legal Foundation, take a look at potential candidates, major environmental cases that could reach the docket and the legacy of retired Justice Sandra Day O'Connor.


Darren Samuelsohn: Welcome to OnPoint. I'm Darren Samuelsohn. Joining us today in the E&ETV studios in Washington is Paul Kamenar from the Washington Legal Foundation and David Bookbinder from the Sierra Club. We're here to talk about the Supreme Court and the upcoming nomination battle up ahead. Gentlemen thank you very much for being here.

David Bookbinder: Thank you.

Paul Kamenar: Thank you.

Darren Samuelsohn: Let's look back of the last 20 years. Give me a sense from you, what do you think have been some of the most important environmental decisions out of the Supreme Court and give me a sense what Sandra Day O'Connor's role in those decisions.

David Bookbinder: Well, there have been quite a few important Supreme Court decisions on the environment. The Supreme Court has tackled issues such as zoning, environmental regulations, the reach of the Clean Air Act, the reach of the Clean Water Act, whether citizens have rights of access to the courts and how the federal government administers the various programs. So it's been an active player in the environmental law arena.

Darren Samuelsohn: And Paul?

Paul Kamenar: Well, I agree with that and I think O'Connor's been key in some of these cases that our foundation has been involved in, such as the regulatory takings case, the Dolen case was a 5-4 decision, her vote was crucial. David mention the extent of the Clean Water Act, that probably is the [Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers] case in terms of how far can the government regulate wetlands, that was 5-4 and she was important in that case. She wrote a decision back in '92 as to whether or not the federal government can force New York state to take radioactive waste and she was very strong on the 10th amendment issue saying, no, you can't force the state to take title to that. So she's been involved in a lot of the key environmental cases that we've been watching and been involved in.

David Bookbinder: Let me just add, just last term she was the fifth, the swing vote, in a case called Alaska v. Environmental Protection Agency, concerning how far the federal government could go to enforce the Clean Air Act.

Darren Samuelsohn: This gets to the question I was going to ask you next, I mean she's one of nine justices on the Supreme Court. How important, just stepping back from just her, but how important can one justice be to swing the court vote?

Paul Kamenar: Well as I said, in the couple of cases, she was the swing vote. Lucas' and the Dolen Noland cases were just terribly important to property rights advocates and then it obviously gets involved in environmental issues. So without those decisions and without her vote in those cases we would not have won those cases. So was it crucial there and we hope that whoever replaces her would be of like mind.

Darren Samuelsohn: David, one justice?

David Bookbinder: One justice can be critical, in some fields more than others. In the environmental field, I'd say it's moderately important.

Darren Samuelsohn: And in terms of the court that we see right now, in terms of we have a think a couple of liberals, a couple of conservatives and she's been kind of considered right in the middle and taking her off the court, whoever replaces her is going to be an important decision in terms of does it swing it just a slight bit to the left or slight bit to the right. Is that right?

Paul Kamenar: I think that's right, and I think a lot of commentators see it that way and that's where the fight is coming up, in terms of what kind of replacement should take her place. And as we all know, when he was campaigning for the presidency, President Bush said he wanted somebody in the mold of Scalia and Thomas and obviously that's more conservative than O'Connor. So it would just be a matter of whether the president keeps to that campaign promise or whether he is persuaded by the liberals who are saying oh no, no, no, you have to replace O'Connor with another O'Connor.

Darren Samuelsohn: Right. David can you give me any sense in terms of, you know --

David Bookbinder: Well we're hoping to find someone, we're hoping the president will find someone who is kind of a pragmatic mainstream conservative, which is what we think Justice O'Connor is and that seems to be the consensus on Justice O'Connor. More importantly, we're looking forward to the process right now and we're hoping that it will be not a compromise candidate, but a consensus candidate, much like Sandra Day O'Connor herself was first put on the appellate bench by Bruce Babbitt, a liberal Democratic governor.

Darren Samuelsohn: And then the Interior secretary under President Clinton.

David Bookbinder: And then the Interior secretary under President Clinton and then she was suggested to President Reagan as a Supreme Court nominee by a Democratic senator and confirmed by the Senate '99 to nothing. And that's what we're hoping to find, rather than go through -- have the president nominate someone who would not get that consensus backing from the Senate and lead us into a long hard summer of bickering.

Darren Samuelsohn: Since Sandra Day O'Connor announced her resignation and in the last couple of days we've seen President Bush reaching out to Democrats and Republicans in the Senate. Do you have a sense, Paul, that President Bush is going to actually satisfy Democrats in terms of who he ends up picking?

Paul Kamenar: I don't think so. I think no matter whom he nominates there's going to be some kind of a fight. If there is somebody that had the same kind of reputation as O'Connor, it very well may be something to the Democrats can sign on to, but if you're looking at what's going on with the liberal activist groups, People for the American Way and others, it looks like they're gearing up for a pretty big fight no matter who the nominee is. But also, keep in mind that the dynamics of this all may change if Rehnquist resigns as well.

Darren Samuelsohn: Absolutely.

Paul Kamenar: And that might give the president some wiggle room in terms of nominating perhaps somebody that's obviously more conservative than O'Connor to take Rehnquist's position and then maybe someone else that is not as conservative for O'Connor's position and then it may deflect the fight somewhat in that regard.

Darren Samuelsohn: Right. Do you have any sense that he might go with two far right judges, I guess?

David Bookbinder: It's entirely possible, but I think we shouldn't really be speculating about Chief Justice Rehnquist. He's there. He's continuing to serve and speculation is a little bit fruitless. As for Justice O'Connor, I think I would disagree with Paul's characterization as the liberal groups looking for a fight from this one. Representing one of those liberal groups, nothing would please us more than a mainstream conservative of the type that we would not put up and that a liberal president would not nominate to the court, but there are plenty of conservative Republican judges and conservative Republican non-judges, who are still lawyers, that we would say, OK, they're perfectly adequate and confirm them and let's let the business of the country go forward.

Darren Samuelsohn: Well let me ask you, I mean there's been a lot of groups that have formed sort of watching the judicial process in the last couple of years that I've noticed, in terms of covering the appellate court process and the nominations there. So is it a new paradigm, I guess, in a sense in terms of environmental groups showing an interest in judicial nominations and are you probably going to be more active on this nomination than anything that you've ever been active on, you know?

David Bookbinder: Well we've been very active on the judicial nominations of a few of the president's nominees.

Darren Samuelsohn: But Supreme Court specifically.

David Bookbinder: It depends on who the nominee is. We've looked at the same lists that are being bandied about of potential nominees and I can tell you now that there are several where the environmental groups would not take a position. We'd certainly not oppose, whose records in some issues are such that other liberal groups might say no we don't want them, but whose environmental records are perfectly adequate and we would not oppose.

Darren Samuelsohn: Paul, do you sense that environmental groups are in a position here where they're going to be making more noise than ever before?

Paul Kamenar: Well it depends on, I think I agree with David, who the nominee is and I just be curious David, who are some of those nominees that you think that your group and the environmentalists would not oppose? Do you have some names in mind?

David Bookbinder: At the risk of being coy while on camera, we don't want to name names. We really want to stay out of the business of saying this person is acceptable and this one isn't, but it's my -- I've gone through the records of at least a dozen of the potential nominees with a fine tooth comb on environmental issues and there are several who we certainly would not oppose.

Darren Samuelsohn: I kind of want to name names at least just a drop here, I mean we know that Attorney General Alberto Gonzales, his name is out there. We know that some of the senators up on Capitol Hill -- Senator Cornyn and Senator Hatch are being named. We know from across the country some of the appellate court judges, from the 4th Circuit, Michael Luttig and Judge Harvie Wilkinson are named and then here in the D.C. Circuit, Janice Rogers Brown, who just went through a big fight. So there are a lot of names out there. Can you give me any sense, of those which ones are absolutely no's for the environmental community?

David Bookbinder: I can certainly say having strongly opposed Janice Rogers Brown for the D.C. Circuit, we would continue that strong opposition if she were nominated to the Supreme Court.

Darren Samuelsohn: Do you have any --

Paul Kamenar: Well, that probably is true and I think one of the candidates that we like from our position is Michael Luttig, from the 4th Circuit and I think perhaps the environmental groups and some of the liberal groups would oppose him. He's issued a couple decisions, one that we think is for important in terms of the proper balance between federal government and state government, is the Endangered Species Act. And in the red wolf case, down there in the 4th Circuit, he dissented in that and we've been arguing that the Supreme Court should address this issue as to whether or not an endangered species that's located in one county, that doesn't cross state lines, it's not interstate, it's not commerce, that the court should take these and they been denying certs in a number of cases, the most recent one is the Texas cave bugs case, the GDF Realty case versus Norton. And we're hoping that the court does address this, because it would be in line with its commerce clause jurisprudence in the Lopez case, the Morrison case, the Rasch case, in terms of the local marijuana --

Darren Samuelsohn: Right.

Paul Kamenar: -- has a different dynamic with respect to that. But then again, Luttig was against us in some other cases, in the Wilson case, dealing with wetlands and so forth. I think he calls it as he sees it. He probably is a little stronger on the constitutional limits of federal power. He probably is maybe more deferential in the administrative law area, although the recent new source review case, it was unanimous with Judge Motz, who's a liberal appointee --

Darren Samuelsohn: From the Clinton administration, yeah.

Paul Kamenar: Graden at the EPA just got it mixed up in terms of what is the word modification, in terms of whether the power plant had to apply for a new permit and so forth. And so some of those issues you just really can't tell.

Darren Samuelsohn: David, based on what you're hearing on Luttig, out of the 4th Circuit in Richmond, is he someone who's probably a no from environmental groups do you think?

David Bookbinder: I would hesitate to say someone is probably a no or a yes, but obviously Judge Luttig has an extensive history of decisions and as Paul pointed out, he has a view of the -- that Congress' powers under the commerce clause are limited in terms of protecting endangered species. It's interesting, that might come up if the president were to nominate perhaps Judge Edith Jones in the 5th Circuit or Edith Clement from the 5th Circuit, who dissented from a request that the en banc panel look at the Texas cave bug case, which the court declined -- the 5th Circuit declined to do, I mean the Supreme Court declined.

Darren Samuelsohn: Let me get at this with you David, the justices who are nominated, I mean they're coming with a whole bunch of different decisions that they've written. Will you just focus on the environmental decisions that have come out and not look at the other decisions in terms of abortion or any other social issues that are out there, environmental groups will be specifically focusing in on the environmental decisions?

David Bookbinder: Absolutely correct. We do not cross over on that one and let me give you a good example. In the recent judicial fights, for instance, Judge Terrence Boyle, who's a District Court judge in North Carolina and who the president nominated for the 4th Circuit, the civil rights groups and other liberal groups are vehemently opposed to his elevation to the 4th Circuit. Judge Boyle has handled a number of environmental cases and is regarded as an excellent judge for enforcing environmental laws. So we've taken no position on Judge Boyle and we will do the same thing with a Supreme Court nominee. We simply will stick solely to issues concerning the environment.

Darren Samuelsohn: Paul, I was really interested in reading in the Washington Post the other day, in terms of how much influence maybe the U.S. Chamber of Commerce -- or how much work at the U.S. Chamber of Commerce has put into the Supreme Court battle that we're about to see ahead. What's your sense in terms of, have you ever seen industry this interested in what's going on and why are they so interested?

Paul Kamenar: Well I can't speak for the chamber, but you're right, they have been very active in this particular nomination process. I think they did get involved, if I'm not mistaken, in a couple others way back when, but in a very marginal way. So I think what industry and the chamber and business groups, including our foundation, we're very pro-free enterprise, opposing excessive government regulation, looking at if the Supreme Court indeed can lay down the law, literally and figuratively, in terms of what Congress means by certain statutes and the proper balance between the federal government and the state government. Now this can cut both ways. I'll tell you why. I mean business generally likes a national uniform type regulation. Those who are very assertive of 10th Amendment rights and so forth believe that the state should have room to operate here. So on the pre-emption issue, there are a couple of cases that were kind of mixed in the recent term, the Bates v. Dow agra-sciences case. In terms of, can the federal government preempt state law and I think it's kind of mixed there, but I think the bottom line is that business prefers a jurist who interprets the statute as written by the Congress and doesn't go off and say, well, what do I think would be best from my personal view in terms of how this law should come out? Because that's very unpredictable and business does not like unpredictability.

Darren Samuelsohn: David, obviously your group is at war with business all the time in terms of litigation and whatnot. Are you concerned at the level of interest that the Chamber of Commerce has taken in this issue?

David Bookbinder: No. We're not concerned. We think it's actually a good thing that everyone recognizes the importance of federal courts in terms of interpreting the environmental statutes, and we encourage everyone to become interested and involved. And again, hopefully the president will name someone that everyone will breathe a huge sigh of relief and say we're not going to have a fight over this nominee. Of course it would be bad news for the pundits.

Darren Samuelsohn: Right.

David Bookbinder: But good news for us in August in Washington that we wouldn't have to be waging this war.

Darren Samuelsohn: In the Supreme Court, I mean they deal with so many cases in any particular year, in any particular term. Looking ahead, we don't really see that much really on the energy and environment front going forward in the next specific term, that whoever replaces Justice O'Connor will have to deal with. But looking further ahead, can you give me a sense, what are some of the issues that the Supreme Court, do you think, will be tackling the next five, 10 years, Paul?

Paul Kamenar: Well one that I've mentioned already that I think they should take on, I think it's just a matter of getting the circuits split or lined up the right way, is the endangered species area, because the court has not specifically addressed that, whether or not the federal government has commerce clause power to regulate something that is solely within one state. So there's that issue. I guess there'll be a number of issues coming up with the radioactive waste, the Yucca Mountain case and interpretations of the -- there are a couple of cases in the D.C. Circuit pending on whether the EPA can regulate carbon dioxide.

Darren Samuelsohn: Sure.

Paul Kamenar: The statute there is being -- the way they're litigating that is saying, well, what did Congress mean by pollutant, etc., in that statute. And our side, we're involved in that case, is using the Food and Drug Administration case, a tobacco case, where the court said no, the FDA cannot regulate tobacco. The Congress did not intend that. So strict constructionists in that area would help our side in that Clean Air Act case and there's a couple other that are bubbling up, the mercury emissions cases. The New Jersey case is now being briefed in the D.C. Circuit, but I think Dave probably follows those little more carefully than I do.

Darren Samuelsohn: Sure. What are you watching?

David Bookbinder: I would disagree with Paul as to which cases are going to wind up in the Supreme Court. I agree with him on the Endangered Species Act. I also think the Supreme Court is eventually going to rule on the extent of Congress's power under the Clean Water Act, how far does it reach in terms of tributaries and wetlands. On the issues of statutory interpretation of perhaps whether greenhouse gases are covered by the Clean Air Act, I don't think so. Those are not typically the things that the Supreme Court takes.

Darren Samuelsohn: Right.

David Bookbinder: Those usually wind up being decided by the courts of appeals. It's possible, but I just don't think it's likely.

Paul Kamenar: I just like to add he mentioned a good point about the extent of the Clean Water Act and there is a cert petition that's been carried over and pending and that's the Rapanos case dealing with the extent of the government to regulate wetlands. It's sort of a where does [Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers] go in terms of how far or how narrow can that be read, so that's a case to look for when the court reconvenes October, whether they're in grant review there and that would be a very important case from our point of view.

Darren Samuelsohn: Gentlemen, let me just ask you to kind of to wrap things up here. I mean President Bush will be in office until 2009. How many Supreme Court nominations -- how many openings do you think he might have and give me your prediction on who you think he's going to pick here on the first one.

David Bookbinder: I think the good betting is that he'll have between two and three nominees and I would not presume to guess what the president's going to do with them.

Darren Samuelsohn: And you think those would be, I guess, O'Connor, Rehnquist --

David Bookbinder: I would assume Justice Rehnquist at some point in next two or three years will step down and --

Darren Samuelsohn: Not Stevens?

David Bookbinder: Stevens is 85 now and that would probably be the third one up there.

Paul Kamenar: I agree with that. They'll probably have three during his term and again it's anybody's guess here, and I don't want to lose my bets here in terms of having this come back to haunt me.

Darren Samuelsohn: I guess we'll have to stay tuned. Thank you very much for being here. Until next time, this is Darren Samuelsohn for another edition of OnPoint.

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