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The Still Missing Case of Connecticut v. AEP:

On June 7, 2006, the U.S. Court of Appeals for the Second Circuit heard oral argument in Connecticut v. American Electric Power, an action against major utilities seeking injunctive relief for their alleged contributions to the "public nuisance" of global climate change. Judge Sotomayor was on the three-judge panel that heard the case. In 2007, the Second Circuit panel requested supplemental briefing on the effect of Massachusetts v. EPA on Connecticut's claims. Those briefs were submitted in July 2007. It is now two years later, and the case has yet to issue.

Senator Grassley asked Judge Sotomayor about the missing case at today's hearing.

GRASSLEY: Since 2005, you have been a presiding judge on a panel of an appeal filed by eight states and environmental groups arguing that greenhouse gases are a public nuisance that warrant a court-imposed injunction to reduce emissions.

Your panel, in Connecticut v. American Electric Power, has sat on that case for 45 months or nearly three times the average of the Second Circuit. Why, after four years, have you failed to issue a decision in this case?

SOTOMAYOR: The American Bar Association rule on code of conduct does not permit me to talk about a pending case. I can talk to you about one of the delays for substantial a period of time in that decision, and it was that the Supreme Court was considering a case, a Massachusetts case, that had some relevancy or at least had relevancy to the extent that the panel asked the parties to brief further the applicability of that case to that decision.

Judge Sotomayor is undoubtedly correct that she cannot speak about a case that is still pending, and she may not be responsible for the interminable delay. It is worth noting, however, that the supplemental briefing to which she referred was submitted two years ago, and is hardly an excuse for the panel's poor conduct.

Cornellian (mail):
You don't explain how you conclude that the two years that has expired since the briefing was submitted constitutes "poor conduct" by the panel. Two years is a long time, and maybe that's the panel's fault, but one can't assume that the panel is responsible for the delay.
7.14.2009 11:45pm
fnook (mail):
2 years ain't even that long. There are plenty of potentially meritorious agency appeals wallowing in the bowels of federal circuit courts five, six years or more.
7.15.2009 12:03am
Gabriel McCall (mail):
The American Bar Association rule on code of conduct

Does the ABA have a rule, with which some code of conduct must comply? Or does it just have rules of conduct?

When niceties of careful English usage are crucial in so many questions of law, it'd be pleasant to see a better command of the tongue in a Supreme Court nominee.
7.15.2009 12:10am
Jonathan H. Adler (mail) (www):
Cornellian --

The reason I believe it is the panel's fault is that none of the parties asked for a delay. To the contrary, as indicated in this story, they have urged the court to resolve the case. I would also note that Priscilla Owen, when she was nominated to the Fifth Circuit, was lambasted for delays that were less egregious than this.

fnook --

Note that it has been over three years since oral argument. Certainly some cases linger in federal appellate courts for longer, but that long a delay after oral argument is quite unusual -- and even were it more regular, it is unconscionable. Call me old fashioned, but I believe justice delayed is justice denied.

JHA
7.15.2009 12:11am
Cornellian (mail):
The NYT article to which you link states that oral arguments were nearly 3 years ago and the panel has yet to issue a decision. If there's been nothing since oral arguments, I agree that's a long time, although taking longer than usual is to be expected for an environmental lawsuit by eight states and New York City versus five large utility companies. That's not exactly an immigration appeal raising the same issue you've seen 300 times before and that you can knock off with a couple of paragraphs of the usual boilerplate.

It seems from your post that at some point after oral arguments, the panel requested briefing on that decision that was before the Supreme Court and those briefs were submitted about two years ago. Again, if that's all that stood in the way of issuing a decision, that's getting into the range of a significant delay, though hardly extreme given the nature of the case. It's just not clear to me that that extra briefing was the only thing going on in between oral arguments and now.
7.15.2009 12:19am
drunkdriver:
The American Bar Association rule on code of conduct does not permit me to talk about a pending case.


If Sarah Palin had said something this inept, we'd be hearing more laughter from the press. A SCT nominee says it and . . .
7.15.2009 12:39am
Cornellian (mail):
If Sarah Palin had said something this inept, we'd be hearing more laughter from the press.

No, you'd hear astonishment that she was even aware of the rule, and skepticism about whether she had read it, let alone understood it.
7.15.2009 12:50am
idgaf:
This case could be delayed even longer if the panel is divided and Sotomayor is confirmed. If the two remaining judges aren't unanimous, a third judge would have to be assigned, and Second Circuit Rule 0.14 says that third judge is to be assigned by the clerk.

3 years of delay could be just the beginning.
7.15.2009 1:00am
ChrisIowa (mail):
That damned farmer Grassley. Asking about a mere three year delay. During which he harvested only three crops. And a wise Hispanic Woman couldn't resolve this case.
7.15.2009 1:02am
Prosecutorial Indiscretion:
You don't explain how you conclude that the two years that has expired since the briefing was submitted constitutes "poor conduct" by the panel. Two years is a long time, and maybe that's the panel's fault, but one can't assume that the panel is responsible for the delay.

Who else would be responsible for the delay?
7.15.2009 1:30am
Oren:
JHA, the phrase "justice delayed is justice denied" usually doesn't attach to matters of public, not individual concern.

The panel behaving poorly in this instance doesn't bother me one bit, because the longer they sit on attempts to make policy-by-tort, the greater chance Congress can preempt them with policy-by-statute.
7.15.2009 1:32am
Cornellian (mail):
You don't explain how you conclude that the two years that has expired since the briefing was submitted constitutes "poor conduct" by the panel. Two years is a long time, and maybe that's the panel's fault, but one can't assume that the panel is responsible for the delay.

Who else would be responsible for the delay?


Quite often in litigation one party or another is responsible for the delay because one party benefits from delay and the other party is either too busy, too cheap or too lazy to push things forwards. I'm not saying that's necessarily the case here, just that one can't assume the court is at fault because a case is taking a long time.
7.15.2009 2:09am
HS-AU:
I have to agree with Cornellian. There are many reasons why it may be that the decision is not yet handed down, which are not the fault of the panel. Or else it may be the fault of the panel generally but not that of Sotomayor specifically. What if the two other members have been spinning their wheels while Sotomayor has her decision sitting on her desk?

It would be improper for Sotomayor to finger point in that circumstance. It would be impossible for her to defend your accusation of poor conduct.
7.15.2009 2:44am
BRM:
She's clearly referring to the ABA code of judicial conduct. Hard to make fun of what the rush transcript portrays as a misstatement, which could be self-correction from "rule" to "code" or an error in the transcript. Besides, everyone looks stupid when their speech is transcribed exactly because we don't speak with the formality of written English.
7.15.2009 4:55am
David M. Nieporent (www):
I have to agree with Cornellian. There are many reasons why it may be that the decision is not yet handed down, which are not the fault of the panel.
And yet, neither of you have identified any of those reasons, let alone "many." There are many reasons before the case gets to them; how can it be anything but the fault of the panel after arguments? Who else has any role to play?

(We know about one: the Supreme Court's decision they were waiting on. But since then?)
7.15.2009 5:57am
Jonathan H. Adler (mail) (www):
Cornellian --

If there has been something else going on to delay the opinion, than neither several reporters who have investigated nor any of the attorneys involved with the case know what it is. There is no pending litigation that would preempt, and Mass v. EPA has resolved the primary relevant question of federal law. As the Greenwire (NYT) story notes, several of the attorneys have actually contact the Court inquiring about the delay. Perhaps I'm influenced by my experience clerking on the D.C. Circuit -- where no case went more than a year between oral argument and opinion -- but I still see this as taking far longer than can be reasonably defended (although, I acknowledge, the fault may not be Sotomayor's at all).

Oren --

There's actually a straight-forward argument that at least the federal common law aspects of the suit are preempted now given the Supreme Court's Mass v. EPA decision.

JHA
7.15.2009 8:37am
Cato The Elder (mail) (www):
Sotomayor's actions in now four bad cases was perfectly correct! But even if they weren't, even if they really do reek to high heaven, you can't point a finger at her, since she sat on a three judge panel on every single one of them. In fact, you can't point a finger at anyone on those panels! No one is responsible. Oh, and by the way, could we please nationalize health-care now for the children and illegal immigrants?
7.15.2009 8:47am
rosetta's stones:
The SC got its fingers singed in that Mass/EPA decision... and I expect a lower court doesn't wanna risk getting slapped down if the "regulating everything airborn from frisbees to flatulence" crowd suddenly loses a majority on the SC... i.e. Vice President Kennedy is in a different biorhythmic phase that week. On the other hand, they don't wanna risk crossing that Mass opinion, even if the law directs them that way. It's a no-win situation for them.

So then, that decision is being held up for reasons political, it appears. Maybe they were hoping legislation would overtake the case, who knows?

A very productive use of the blogger's time and expertise, here. Stick with this one, bud.
7.15.2009 9:50am
Oren:

I expect a lower court doesn't wanna risk getting slapped down if the "regulating everything airborn from frisbees to flatulence" crowd suddenly loses a majority on the SC.

You've got to be high or something, what possible Obama nominee would be on the non-Kennedy side of Mass v. EPA?

Or are you talking about > 2012?
7.15.2009 10:58am
Sparky:
By offering that explanation, didn't she basically just talk about a pending case?!?
7.15.2009 11:00am
Eddie Haskel (mail):
Sparky: By offering a gotcha does it make you feel like you know the law. What about the case did she reveal except something that would be on public record, i.e. that a brief was filed? But that's what makes a good lawyer, ain't it--finding sophistic arguments that prove . . . what exactly do they prove?

More generally, when was Judge Sotomayor elected the queen of the panel? Is she to be held responsible for the collective action of the court?

But of course, let's simply ignore the substance of any of her decisions, because that would mean reading and understanding the law, instead of trying to find some soundbite that can be puffed up into a controversy.
7.15.2009 11:22am
rosetta's stones:
You've got to be high or something, what possible Obama nominee would be on the non-Kennedy side of Mass v. EPA?

Or are you talking about > 2012?


I'm not high on anything, but Kennedy intermittently appears to be, and if he's off his meds that day, or on them as the case may be, he might jump over and decide he suddenly opposes judicial regulation of everything airborn, from frisbees to flatulence. In that case, by my count, it doesn't matter whether Souter is replaced by SoSo or Karl Marx, because the new majority outvotes her/him.

That's why the lower court is stalling, I suspect. They face issues on either side of a decision. They can cross today's SC precedent (if it truly applies, that is), or they can cross tomorrow's precedent (if it applies, and the SC is appropriately medicated that day).
7.15.2009 11:25am
NickM (mail) (www):
Federal Judges are bound by the Code of Conduct for United States Judges, not the ABA Model Code of Judicial Conduct.

Nick
7.15.2009 11:43am
David M. Nieporent (www):
Nick, thanks for raising that point; I was sort of wondering also why she was citing the ABA, although I assume a similar provision can be found in the real code.
7.15.2009 12:07pm
neurodoc:
Connecticut v American Electric Power will have to go on undecided for a great many more years before it begins to rival Dickens' legendary Jarndyce and Jarndyce.
7.15.2009 11:39pm

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