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Supreme Court Nominee - Environmentally Friendly?

By Ted Nelson ecomii.com
May 3, 2009
File under: Environmental Concerns

supreme-court.jpg

The decision by Supreme Court Justice David Souter to step down from the bench may not be as game changing as it seems at first blush.

Although Justice Souter was nominated by George H.W. Bush in the hopes of getting a conservative on the bench, his voting record since has been that of a centrist and a real disappointment to the right. His decision to step down in Obama’s first year in office, rather than moving the decision up to the end of the Bush presidency, would seem to confirm his allegiances.

The fact that it may not completely swing the balance of power on the Supreme Court does not mean, however, that deciding on a replacement to Souter is not an extremely important decision for Obama’s administration.

During his time in office George W. Bush managed to get two young, ultra-conservative judges appointed to the US Supreme Court. These young, like-minded justices ensure that President Bush’s legacy will endure over the coming decades, even as his Presidency is remembered as the most pathetic in American history.

Obama supporters are pressuring the President to get a similarly strong liberal judge appointed to the court. Since 7 of the 9 Supreme Court Justices are white males, there is also strong pressure for Obama to nominate a female and/or a minority. To his credit, Obama has gone out of his way to declare that merit will be the deciding factor in his nominee, emphasizing “empathy” and the law’s impacts on people’s daily realities.

During last year’s Presidential election US News and World Reports cited a paper by Richard Posner and William Landes which found that four of the five most conservative Supreme Court Justices since Franklin Roosevelt’s Presidency currently sit on the bench (Thomas, Scalia, Roberts, and Alito). Another, Anthony Kennedy, finished 10th most conservative. Although Souter and the next two Justices expected to depart (Ginsberg and Stevens) are viewed as centerists or lefties, if President Obama ends up making three appointments during his time in office he can shape the make-up of the court for the next generation.

Obama’s nominee to replace Souter (and any further nominees he makes) can have a profound effect on the environment.  In 2007 the court ruled that the EPA has the authority to regulate greenhouse gas emissions in accordance with the Clean Air Act, but by a slim 5-4 margin. This means that there are four justices sitting on the Supreme Court who do not believe the Environmental Protection Agency has the right to protect the environment… four global warming deniers.

The Supreme Court has a history of setting precedents which act as catalysts to socio-political progress in the United States for several generations afterward: a notable example is Brown vs. Board of Education in 1954, which paved the way for desegregation.

Environmental issues are likely to play a large political role in the coming decades, as greenhouse gas concentrations reach critical mass while technological advances and political willpower make environmentally sustainable development a real possibility.

Obama’s nomination to replace Souter can play a huge part in ensuring that the Supreme Court enables progress on environmentally sustainable development, rather than holding it up.

 
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6  Comments
  1. kami
    May 7, 2009 9am EDT

    Great post, this is a big deal. Maybe you could do a post on the nominees once they’re announced? I’d like to know where they stand environmentally

  2. Terry Waltham
    May 7, 2009 11am EDT

    woah I didn’t know about the 5-4 decision on GHG regulation. That’s scary. Here’s hoping Obama picks someone who won’t politicize the Court. Seems pretty unlikely…

  3. Tarek
    May 7, 2009 1pm EDT

    Four of our supreme court justices deny global warming? THAT is scary.

  4. Jake P
    May 27, 2009 4pm EDT

    Here’s to hoping Sotomayer’s green! I’d love to hear your thoughts on Sonia if you have any insight Ted

  5. Ed Campbell
    May 31, 2009 4pm EDT

    Should this be raised at this time?

    The First cannon of judicial ethics says:

    A JUDGE SHALL UPHOLD THE INDEPENDENCE AND INTEGRITY OF THE JUDICIARY, SHALL PERFORM THE DUTIES OF THE OFFICE IMPARTIALLY, AND SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL OF THE JUDGE’S ACTIVITIES .
    RULE 1.01: PROMOTING CONFIDENCE IN THE JUDICIARY
    A judge shall act at all times in a manner that promotes public confidence in the independence,* integrity,* and impartiality* of the judiciary.

    I do not find any fault in the current nominee to the United States Supreme Court for being a woman, a Latino, for having made remarks on her qualifications as superior to the qualifications of any Caucasian. I would hope she is environmentally friendly, But I do find fault with her appointment violating the spirit of the first cannon of Judicial Ethics, that a judge should appear impartial. Litigants will be hesitant to turn to courts where the Justices appear stacked against them and this undermines the rule of law. Judge Sonia Sotomayor would become the sixth Roman Catholic justice on the Supreme Court. There are only nine of them, so that would mean that two thirds of the Justices, 66+%, would be Roman Catholic in a country where less that 25% of the population practices that religion. That religion predisposes its members, by life long training, faith, and in some cases, rule, to take certain positions that are likely to come up for hearing before the court. Any Appointee will not commit before they go onto the bench what position they may take in a case, but the appearance is there, however they may deny this will influence their rulings. The very appearance of six Roman Catholic Justices on the court gives the appearance to all litigants that if they appear on one side of those issues, be if choice, school prayer, school vouchers or other issues, they will not get a fair hearing. Of course, with the church’s and Popes stand on capital punishment, some might be inclined to support such a person in hopes of abolishing the death penalty. Only one Roman Catholic Justice on some of these issues has taken a position not supported by the church. I believe this is a far more important consideration than any other and should bar Judge Sotomayor from being confirmed by the Senate, no matter how good of a Judge she has been and how worthy of the position she may otherwise be. In fact, I believe it should have prompted her to decline the nomination at this time and should prompt her to withdraw. It is just not the appropriate time to appoint one more Roman Catholic to the court and preserve the diversity of the court in representing the religious views of this country. It appears to threaten the first amendment’s freedom of religion that is so much a bedrock of our society. I know these remarks are politically incorrect but feel they must be made.
    Ed Campbell
    .

  6. JakeP
    July 6, 2009 3pm EDT

    Valid points Ed. I share your concern with having another Roman Catholic appointed. Not because of the Roman Catholic belief’s, but because when the court is too heavy in any one demographic (race, sex, religion, etc.) it is not necessarily reflecting the US appropriately. That being said, it is difficult to have a perfect mix, so if we can add an intelligent woman who has a history of taking into account all religions when she votes, I think it’s a solid nominee.

 
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