July 16, 2018

Washington Wire: Impact of Justice Scalia Passing


Impact of Justice Scalia Passing  

The sudden and tragic passing of U.S. Supreme Court Associate Justice Antonin Scalia continues to send ripple effects throughout the political and policymaking communities. Below is a brief synopsis how a vacancy on the Court impacts manufacturing issues.  
Pending Cases: The most immediate impact is that all of the cases on which Scalia voted but have not been publicly released are void. If the Court is divided 4-4 on cases, as it is looking on a number of major coming decisions, the lower court’s ruling stands and the legal system acts as if the case never came before the U.S. Supreme Court. However, once a ninth Justice is seated, the Court is not precluded from rehearing the case. This gives even more power to the twelve Circuit courts whose decisions will continue to cover only the regions under their geographical jurisdiction.  
One ruling that almost certainly would have gone against unions is the California teachers’ case, which now will stay with the lower court that allowed a union to collect dues from non-members (most expected the Supreme Court to rule against the unions). Similarly, an anti-affirmative action case on which Justice Scalia had publicly weighed in, but not officially decided, is stalled. Also in Texas, and with significant consequences on the elections, is the case involving how to count voters in redistricting (Florida, Virginia, and North Carolina also have redistricting cases pending that could reach the Court).  
The stakes are high on manufacturing issues, if Justice Scalia had passed just a week earlier, the Court would have lacked the votes to block the EPA’s existing power plant rule, which is poised to raise the price of electricity by 6-20% annually. One Voice is part of a coalition that petitioned Chief Justice John Roberts to allow the Supreme Court to halt EPA action.  
Future Cases: The Court is not frozen, but in any controversial case where we would see a 5-4 outcome in favor of conservatives, now expect the rulings of lower courts to stand. This does not bode well for business groups in many parts of the country. The second most powerful judicial panel in the country, the D.C. Court of Appeals, is now the most powerful. However, many in manufacturing are greatly concerned about what may come out of the 9th Circuit based out of San Francisco that handles a number of environmental and workplace issues and now will not have the Supreme Court Justices reversing 76% of their decisions as they have done in recent years. Moving forward for the Supreme Court, we could see them taking up more administrative type of cases and those where they believe they can reach agreement. We may not see decisive action now on a number of those cases previously mentioned including on the Congressional District boundaries.  
Senate Consideration: The war of words between Senate Majority Leader Mitch McConnell (R-KY) and Senate Minority Leader Harry Reid (D-NV) and President Obama began within minutes of the public announcement of Justice Scalia’s passing. As of right now, it appears highly unlikely that a Republican controlled Senate will allow an Obama nominee to take a seat on the highest court in the land. Partisan tempers were already high, even before the 2016 campaign for the White House kicked into high gear. Republican Senators in a number of competitive races have publicly sided with Majority Leader McConnell that they should not consider an Obama nominee, including: Sens. Kelly Ayotte (NH), Ron Johnson (WI), Rob Portman (OH), and Pat Toomey (PA).  
In the past few decades, the average time from nomination to approval by Congress is roughly seventy-five days, often with fifty to sixty involving the Senate Judiciary Committee’s vetting process. There is precedent for leaving a seat vacant on the Court – however, we may not see its ninth member added until at least March 2017 and possibly June 2017 – making it the longest vacancy since the Civil War.  
We are already hearing much talk about the Thurmond Rule, named after the late Sen. Strom Thurmond (R-SC) who after the Presidential nominating conventions took place in 1968, announced that as Chairman of the Senate Judiciary Committee he would not advance lame duck President Lyndon Johnson’s nominee to the court nor allow the White House to elevate Justice Abe Fortas to the Chief Justice position. Democrats are crying foul over reports Republicans will not consider a nominee from President Obama and pointed to President Reagan’s nomination of now Associate Justice Anthony Kennedy, which the Senate confirmed in the final year of that Administration.  
Nuclear Option: The so-called Nuclear Option of allowing a simple majority for some judges does not apply to the Supreme Court. In addition, a recent Court case decided in favor of One Voice, NLRB v. Noel Canning, helped decide whether the President can nominate a Justice during a Senate recess. The case split the powers, allowing the President to make a temporary appointment if the Senate is in a mid-session or between Congress break, allowing that appointee to serve through the current session of Congress (each typically tracks closely to a calendar year). The ruling does give the Senate much more clarity over when it is actually in recess and makes a temporary appointment difficult but not impossible (Justice William J. Brennan, Jr. started as a temporary appointee and served from 1956-1990).  
Administration’s Options: The Administration has at least three main avenues for the nomination:
1) Name a clear consensus candidate with a national profile (virtually impossible to find);
2) Name someone all agree is qualified even if they are clearly more liberal than conservatives would like but in a typical non-election year could get a dozen Senate Republican votes from those serving on the Judiciary Committee or are from swing states (the election makes this not a typical year); or
3) Name a champion of liberal or minority causes to energize the Democratic base, cement the President’s progressive legacy, and make a statement to draw contrast with Republicans in the elections.  
From the sounds of initial statements from all sides, the President is under tremendous pressure to pursue Option 3, despite his inclination to pursue the second option. Minority Leader Reid recently asked the President to nominate a “consensus” candidate to effectively dare Republicans to oppose someone they’ve supported in the past. However, if Republicans are intent on blocking any candidate no matter what, their nomination now would almost certainly taint and exclude them from consideration by the next President should a Democrat win the White House. There are three or four names that have long existed in Democratic circles who are respected, and received Republican votes during Senate confirmation.  
As time drags on, strategically, some Democrats will say not to bother trying to show they are appeasing Republicans with a consensus candidate who still likely would not secure the fourteen Senate Republicans needed for sixty (even if Majority Leader McConnell does allow a vote). Many believe the third option may end up as a political win-win for both Republicans and Democrats at a national party level, though harmful to five or six vulnerable Senate Republicans and Democratic candidates running for reelection in swing states (also runs in the face of Sen. McConnell’s argument that he is getting things done in the Senate). If President Obama announces a champion of traditionally liberal or minority causes, this allows him to rally the base for the Democratic White House nominee while Republicans can generate excitement among their base, which includes reliable single issue voters on abortion, gun rights, affirmative action, and other cases before the Court.  
Regardless of whether the President nominates a “consensus” candidate as he is inclined to do or he offers up a champion of liberal causes, the country is headed for a showdown not seen in generations. Conservatives on the Court have generally held control on controversial issues for the better part of the past thirty years. The manufacturing community is now left in limbo on a number of critical environmental cases ranging from the regulation of power plants to Waters of the U.S. to unions and workplace discrimination. The political base on both sides of the aisle is putting tremendous pressure on their elected officials and unless the climate cools, it is increasingly difficult to see the Senate approving the ninth Justice to the Supreme Court any time soon.