WASHINGTON, March 2, 2016 - Speculation about a “short list” of potential nominees to replace the late Justice Antonin Scalia on the Supreme Court must be tempered by one of Washington’s sage and frequently-repeated adages – “Those who know don’t talk. Those who talk don’t know.”
Veteran court watchers, however, are talking freely about several jurists whom they see as potential choices for President Obama to nominate. Nevertheless, they agree on one thing – that the odds of confirmation by the Republican Senate this year are somewhere between zero and none. Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, has made clear that he will not hold a hearing on any Obama nominee.
Those most often mentioned in the rumor mill are sitting appeals court judges chosen by Obama and confirmed with Republican senators’ support, who are young enough to have a lasting impact on the court, and who have written opinions deciding cases that can be scrutinized. And at least two of them have identifiable records in cases related to food and agriculture.
Tom Goldstein, who writes for the authoritative SCOTUSblog, has suggested consideration of “a highly respected, young Ninth Circuit judge, Paul Watford, and Eighth Circuit Judge Jane Kelly, “who was confirmed by a vote of 96 to zero, with the strong support of Senator (Chuck) Grassley.” Goldstein also sees Attorney General Loretta Lynch as a serious candidate, but makes a strong case for a long-shot candidate who is not on the appeals bench – Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia.
Assessing the politics, Goldstein concludes, “The bottom line is that President Obama’s nominee is not getting confirmed before the election.” But he suggests that Republicans, if they feel pressure, may stop a filibuster and then proceed to reject a nominee on the merits. For that scenario, he sees Brown Jackson as a logical choice. “She was confirmed without any Republican opposition in the Senate – not once, but twice” – to her current position in 2013 by unanimous consent and previously to a seat on the U.S. Sentencing Commission.
Brown Jackson is “a young – but not too young (45) – black woman” who clerked for Supreme Court Justice Stephen Breyer, he notes. Although others may say the president would not nominate someone from a district court, Goldstein sees special circumstances. “It is easy to see a political dynamic in which candidate Hillary Clinton talks eagerly and often about Judge Brown Jackson in the run-up to the 2016 election, to great effect.”
Agri-Pulse has reported on two Brown Jackson decisions with significant implications for food and agriculture. Just a year ago, she threw out a suit seeking to block USDA from implementing its new National Poultry Inspection System (NPIS), writing in sharp language that critics of NPIS rely on “unsupported and overblown” claims. She also critiqued the activist group Food and Water Watch and its allies for “plainly ask(ing) this court to accept sheer speculation about the bad things that might happen to the nation’s poultry supply” in their case against USDA.
In September 2013, she ruled against U.S. and Canadian meatpackers and livestock growers who sought to block USDA’s regulation mandating country-of-origin labels (COOL) on meat. In an 80-page opinion, she rejected their claims that COOL violated their First Amendment “free speech” rights by forcing them to speak when they did not want to do so. Industry’s arguments do not account for what Congress apparently intended in the law, she wrote. Or “In other words, plaintiffs’ statutory arguments cherry-pick the trees and miss the forest.”
The following year, Brown Jackson’s decision in the COOL case was upheld by a panel of the U.S. Court of Appeals for the District of Columbia in a unanimous opinion by Judges Merrick B. Garland, Sri Srinivasan and Stephen F. Williams. Garland and Srinivasan also have been on some lists of potential Supreme Court nominees. Four years earlier, Garland was one of three appellate judges who denied oil companies’ challenge to the U.S. Environmental Protection Agency (EPA) Renewable Fuel Standard ruling – a decision that elated biofuels supporters.
Srinivasan was one of three appellate judges who decided last year to allow the Humane Society of the United States and Iowa Citizens for Community Improvement to challenge USDA approval of the National Pork Board’s $60 million purchase of the well-known “Pork: The Other White Meat” slogan from the National Pork Producers Council (NPPC).
Garland, now the appellate court’s chief judge, has a long record of upholding congressional prerogative and giving deference to agency decision-makers. In one such decision, Garland and another judge upheld USDA by rejecting a challenge by large-scale farmers to its payment limitation in making 1999 market loss payments to dairy farmers. But he allowed the American Farm Bureau Federation and National Pork Producers Council to challenge EPA “fine particulate matter” (i.e., dust) standards in a 2009 case. Brown Jackson’s decisions, although fewer, show a similar pattern. Either would be a contrast with Scalia and his allies on the high court who have faced liberal criticism for not hesitating to overturn decisions of Congress – notably in voting rights and campaign finance law decisions.
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