The forging industry and other U.S. manufacturers won a significant, if temporary, victory in February when the U.S. Supreme Court voted 5-4 to stay the EPA’s Clean Power Plan until all court challenges are heard. Yes, you read that right: Opponents of the plan will actually have their day in court before the rule is implemented!

As recently as January, the D.C. Circuit Court of Appeals had refused to grant a stay, saying that petitioners had not met the “stringent requirements” for such a stay. The Supreme Court rarely grants stays, so the decision was a welcome surprise. What it means is that the EPA cannot proceed with implementation of the rule until all litigation regarding its impacts can be decided.

Forgers and other energy-intensive manufacturers have been extremely concerned about the potential they would become “regulated entities” if the rule is implemented. FIA has been actively engaged in the Partnership for a Better Energy Future (PBEF), which is led by the National Association of Manufacturers (NAM) and the U.S. Chamber of Commerce. NAM and the Chamber are leading members of the legal team that filed suit against the plan and helped achieve the stay.

Arguments in that suit and others filed by 27 states are scheduled to begin June 2 in the D.C. Circuit Court of Appeals. Regardless of that outcome, appeals to the Supreme Court are likely.

Of course, the Supreme Court that granted the stay had nine members. Following the untimely death of Justice Antonin Scalia on Feb. 13, it is down to eight. Scalia was considered the intellectual leader of the conservative wing of the Court, and he was among the five who voted to grant the stay. If the vacancy is filled with someone more liberal, the balance of the Court would almost certainly shift. If the Supreme Court decides a case 4-4, then the lower court ruling stands and no precedent is set.

So, what now?

The U.S. Constitution is clear. The President nominates candidates for the Supreme Court, with the advice and consent of the Senate. But the Senate is not required to give its consent – that is, it may decline to approve, or even consider, presidential nominees. And with a presidential election only nine months away, the pressure from all sides is enormous, with Democrats crying that the vacancy must be filled immediately and Republicans holding firm on waiting until after the elections.

The basic process of filling a Supreme Court vacancy is relatively straightforward. The President names a candidate, the Senate Judiciary Committee holds hearings at which the nominee is questioned about his or her qualifications, and the Committee decides whether to send the nomination to the full Senate. In the full Senate, the nomination is subject to filibuster, which can only be stopped with 60 votes. In today’s Senate, that means 14 Republicans would have to vote with all Democrats to end the filibuster. Once 60 votes are cast to end debate, only 51 votes are needed for final approval. If approved by the full Senate, the candidate is then appointed to the Court by the President. Appointments are for life, unless the Justice resigns or is impeached and convicted.  

Historically, Court appointments were based on judicial qualifications, and Presidents were given substantial deference in getting their nominees approved. Beginning with the failed nomination of Judge Robert Bork by President Reagan in 1987, however, the process has become increasingly politicized, with nominees subjected to scrutiny regarding their political leanings. More recently, Supreme Court nominees have been judged by various “litmus tests” regarding abortion, gun control and other social issues. As is often the case, where one stands depends on where one sits – that is, both Democrats and Republicans have used their particular political prism to view the judicial records of potential Supreme Court Justices.

As of this writing, President Obama has vowed to send up a nominee to fill the vacancy left by Scalia’s death, and Senate Republicans have vowed not to confirm that nominee, regardless of who it might be. In fact, they have said they won’t even hold hearings.

Meanwhile, the court case against the EPA will continue, and forgers will be watching closely to see whether the Clean Power Plan will be implemented or sent back to the agency. Odds are no better than 50-50 that a decision will be reached before a successor to the Supreme Court is named.