“A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change.” – Justice Scalia
I last saw Justice Scalia in November, at the General Counsel’s Forum meeting, where he signed my copy of Reading Law: The Interpretation of Legal Texts (see Gaille Energy Blog Issue 16 – Justice Scalia’s 37 Contract Drafting Rules). Justice Scalia’s death last week brought terrible news for the energy industry. He was part of the Court’s majority in its 5-4 decision to freeze President Obama’s Clean Power Plan – a set of EPA regulations that seeks to transition the nation to renewable energy. The Supreme Court’s ruling prevented the EPA rules from being implemented (pending their judicial review), which signaled that the Clean Power Plan likely would be overturned.
The name most discussed as Justice Scalia’s replacement is U.S. Court of Appeals Judge Sri Srinivasan (an Obama appointee). In fact, he was just selected for the three-judge Court of Appeals panel charged with deciding the legality of the Clean Power Plan. Together with Judge Rogers (a Clinton-appointee who has previously defended similar EPA regulations), the two provide the Obama administration with a Democratic majority. Oral argument before the Court of Appeals is scheduled for June 2, but its decision will not come until much later in the year. Court analyst and law professor Jonathan Adler opined that Judge Srinivasan “would be inclined to give the EPA more leeway than, say, some of the more conservative judges on the court. He will likely be the swing on that panel.”
Who is Judge Srinivasan? I’ve known Sri since 1994, when we were both selected as co-clerks for Chief Judge Wilkinson of the U.S. Court of Appeals for the Fourth Circuit. During the 1995-96 term, we shared adjacent offices at the courthouse. Judge Wilkinson appreciated the value of picking clerks with different perspectives, and our chambers enjoyed a lively philosophical debate. Sri is one of the smartest (and by the way, nicest) people I have ever worked with. Prior to his court appointment, he built a record as a premier appellate lawyer, arguing 25 cases before the Supreme Court (including that of Enron’s Jeff Skilling). Sri once joked that he would never be able to keep up with his successful sister, Srinija Srinivasan – employee #5 at Yahoo! and inventor of its search engine index. He’s certainly managed to do so.
Yet lawyers are advocates who speak for their clients, not for themselves. Judge Srinivasan’s many court briefs and arguments do not represent his personal views. As Adler stated, “[h]e’s the judge that we don’t know as much about in terms of how he’ll approach some of the larger questions that will play” in the Clean Power Plan. Another commentator stated, “Srinivasan’s unclear record offers Republicans few legitimate reasons to block him. It also means that liberals can’t be sure that Srinivasan actually shares their views.” Such “stealth” judicial nominees are now a regular feature of the American judiciary. This was not always the case, though. Prior to Judge Bork’s failed appointment to the Supreme Court in 1989 – during which his philosophical writings were used against him – publishing among judges (and aspiring judges) was commonplace.
My law & economics thesis studied publishing habits by U.S. Court of Appeals Judges before and after the Bork hearings (see Publishing by U.S. Court of Appeals Judges: Before and After the Bork Hearings, 26 Journal of Legal Studies 371 (University of Chicago 1997)). Judge Richard Posner, who was my law professor at the time, assisted me with the project. He expected that the analysis would prove judges to be indifferent to the Bork defeat. After all, only a few of them make it to the Supreme Court. We were all surprised when it demonstrated the opposite result – precipitous publishing declines. In essence, the study proved that many of the U.S. Court of Appeals Judges perceived themselves as being in competition for appointment to the U.S. Supreme Court.
When Judge Srinivasan was nominated to the bench in 2013, he received bipartisan support and a unanimous vote of confirmation. Not a single Senator voted against his nomination – not even Senator Ted Cruz. Life is full of intersections, and Senator Cruz’s and Judge Srinivasan’s paths may be poised for another crossing. Senator Cruz also clerked on the Fourth Circuit during the 1995-96 sitting, albeit for Judge Michael Luttig. Judge Luttig (now the General Counsel of Boeing) and Judge Wilkinson were friends, and the two judges’ clerks often worked and socialized together.
What would Justice Scalia have thought about the prospect of Justice Srinivasan? On the one hand, Scalia certainly would not want to be replaced by someone who seeks to reverse his life’s work. Yet Scalia respected the kind of intellect that Judge Srinivasan wields. While speaking with Obama advisor David Axelrod about an impending Court appointment, Justice Scalia supposedly stated: “I have no illusions that your man will nominate someone who shares my orientation, but I hope he sends us someone smart.” He went on to recommend Elena Kagan, who like Justice Scalia and President Obama, had taught at the University of Chicago Law School. President Obama eventually took Justice Scalia’s advice, and Justice Kagan became his second Supreme Court appointment. We’ll just have to wait and see whether Judge Srinivasan (pictured below) will be his third.
About the Gaille Energy Blog. The Gaille Energy Blog discusses proposals in the field of energy law, with a new issue being posted each Friday at http://www.gaillelaw.com. Scott Gaille is a Lecturer in Law at the University of Chicago Law School, an Adjunct Professor in Management at Rice University’s Graduate School of Business, and the author of two books on energy law (Shale Energy Development and International Energy Development).