Results tagged “Merrick Garland” from PlanetGreen.org

Update: Clean Power Remand Cert. Denied

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Yesterday, the Supreme Court issued a new list of orders in which it denied certiorari review, without explanation, to the case of Michigan v. EPA, which concerned whether the Agency unlawfully refused to consider costs in the promulgation of its Mercury and Air Toxics Standards pursuant to the Clean Air Act. It had already heard the case once last year, ruling in favor of Michigan and other industry petitioners, but sent the matter back to the D.C. Circuit without explicitly vacating the MATS.

The Circuit, led by Judge (and future Justice) Garland, accordingly allowed the MATS to remain enforceable until new guidelines were issued by the EPA. Michigan accordingly took the matter to Chief Justice John Roberts, who denied their indignant stay application of his own accord without referring the matter to conference. The ensuing full petition was also rejected in a one-line order on Monday - this is most important because it signals that no four Justices thought Michigan's position was meritorious enough to warrant a hearing, a fact that could bode well for the rest of the Clean Power Plan when West Virginia v. EPA is heard at the beginning of next Term.

This could also indicates a shift in the Court's perception of equitable relief. Since the petitioners' demands in the first Michigan fall under the purview of traditional equity rules, the courts are given greater latitude to consider the greater good when deciding on these claims. The D.C. Circuit exercised that chancery jurisdiction in this case, concluding that the benefits to citizens' health and welfare - up to 11,000 instances of premature mortality prevented annually, as well as 4,700 cardiac emergencies and 250,000 instances of respiratory illness every year - outweighed the burden that regulatory compliance places on the energy and manufacturing industries. As was said in 1947, "a strong showing is required, both of inadequacy of the prescribed procedure and impending harm, to permit short-circuiting of the administrative process," and the petitioners failed to prove that any impending harm caused by the case would adversely impact them. Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752. By allowing that determination of the D.C. Circuit to stand, the Supreme Court renewed what the respondents called the tribunal's "longstanding reluctance to displace traditional equitable authority absent the 'clearest command' or an inescapable inference' to the contrary." (Citation omitted). In recent years, such deference to administrative discretion and the principles of equity has been rare, but as this denial shows, the reversal of that trend could be imminent.

The mere denial of a cert. petition is rarely treated with the same weight as a full decision, and even this acknowledgement of citizens' interests and the EPA's authority cannot fully erase the damage created by the Michigan precedent. However, the changing Court and the changing political climate inevitably move American jurisprudence forward, and we at PlanetGreen believe that someday the natural world will receive the respect from the judiciary that Justice Douglas once famously declared it deserved:

"So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes -- fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water -- whether it be a fisherman, a canoeist, a zoologist, or a logger -- must be able to speak for the values which the river represents, and which are threatened with destruction." Sierra Club v. Morton, 405 U.S. 727 (1972).

Our earlier coverage of this case, both a preliminary statement of the issues and a personal perspective.

Eight Men In - Garland Stonewalled By Reckless Republicans

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herblockcp.jpgJust yesterday, President Obama nominated appeals judge Merrick Garland, currently of the D.C. Circuit Court of Appeals, to replace the late Antonin Scalia on the Supreme Court. This nomination, made while the Court was on break, immediately rekindled debate over whether a lame-duck President should be allowed to appoint candidates of his choice to the Court. Ironically, though, while Judge Garland has been publicly cast as an unpredictable centrist, it is the GOP's politicians who have done the majority of the swing-voting in this situation: first supporting him and praising his qualifications for years, then vowing to keep him off this country's highest bench at all costs.

However, in refusing to even consider Judge Garland, these conservatives have failed to realize that they could be worsening their own party's position. With each new contest, it seems increasingly unavoidable that Hillary Clinton will be the Democratic nominee. For the Republicans, Donald Trump is likely unstoppable, having already aggregated 673 out of 1,237 necessary delegates (that's a 119-delegate lead over both his opponents combined). In all probability, however, the billionaire insurgent will perform poorly in the general election, forcing the hard-liners to confirm a potential Justice named by a Democrat. And if they succeed in compelling Obama to withdraw Garland's name, they could face an even more liberal appointee.

Another misconception about this development is that Democrats should be unhappy with the choice simply because he was not the farthest-left candidate on the short list. To be sure, his experience as a federal prosecutor in many high-profile domestic terrorism cases may have helped to shape his views on criminal procedure, which would probably be solidly to the right of the Court's current liberal wing. However, his record on the D.C. Circuit still evinces a more progressive viewpoint on those issues than that of Sri Srinivasan, who has never overturned a single criminal conviction.

In labor law cases, Judge Garland has consistently upheld the NLRB's decisions and safeguarded the liberties of workers and the right to collective bargaining. His environmental record shows a similar deference to administrative rulemaking, even when taking these stands entails creating disparities between circuits or even weakening the effect of a deleterious Supreme Court decision. This regard for substantial justice could only benefit the Court and the nation.

In a final note, the Republicans regularly attribute to their own party a profound concern about governmental overreach and a deep belief in the separation of powers, but their refusal to perform a necessary part of the political process belies their rhetoric. In this polarized climate, both parties would do well to heed Justice Frankfurter's comments on the comparatively minimal political gridlock existing in 1952: "It would stultify one's faith in our people to entertain even a momentary fear that the patriotism and the wisdom of the President and the Congress, as well as the long view of the immediate parties in interest, will not find ready accommodation for differences on matters which, however close to their concern and however intrinsically important, are overshadowed by the awesome issues which confront the world." (Youngstown v. Sawyer, 343 U.S. 579). Or they could start by simply acknowledging that, as Justice Jackson (who once occupied the now-vacant S.C. seat) once said, "Process which is a mere gesture is not due process." (Mullane v. Hanover, 339 U.S. 306).

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