By Ken Silverstein
March 5, 2016

America’s long recession has ended but the country is still spiraling downward: witness the guttural nature of the Republican presidential primary and the nation’s crumbling infrastructure, as illustrated by the water crisis in Flint, Mich.

The snowy and dreary conditions on the East Coast are helping to dampen spirits, perhaps best reflected by Bruce Springsteen’s song “Cover Me” in which he sings, “The times are tough now, just getting tougher. The world is rough, it’s just getting rougher: Cover me, come on baby, cover me.”

Despite the lowest unemployment since 2008 and some of the highest levels ever achieved in the Dow Jones Industrial Average, the United States is mired in pessimism. Whether that’s fatigue from several slow economic years or the marketing approach by those who would be president is uncertain. But if any event in American history has ever underscored the capricious nature of American democracy, it is the recent death of Supreme Court Justice Antonin Scalia.

Quite literally, the High Court is almost stalemated: like the rest of the country, the justices are evenly split along philosophical lines. Scalia’s replacement will tip the balance. And it’s especially true for environmental issues now pending in the courts and most notably the Clean Power Plan that would reduce carbon emissions by 32 percent by 2030, from 2005 levels, and the mercury rule that has the potential to cut those insidious releases by 90 percent in the coming years.

Enter another New Jersey legend and the voice of reason in a political theater that is wrought with drama: the state’s former governor, Christine Todd Whitman, and the former administrator to the Environmental Protection Agency. When it comes to appointing judges, she has had lots of experience. When it comes to replacing Justice Scalia, she reflects on that history, saying that she hopes the president who is constitutionally bound to name someone and the U.S. Senate that must confirm that appointment will forego politics and rely instead of legal merits:

“Any judge needs to make decisions based on facts, irrespective of their personal convictions,” she told this reporter. “You don’t want a judge that legislates from the bench. But only certain questions can be asked of the nominee and those questions can’t be about their political convictions. I am hoping that President Obama finds someone who is moderate and who has already been confirmed by the Senate.”

How might that play out? No doubt, it’s all tinged in politics but in recent weeks, the Supreme Court has split the loaf: In February, it fed the states and the coal sector some bread crumbs by granting a delay to the implementation of the president’s Clean Power Plan but then it turned around and denied such a “stay” this week with respect to the administration’s mercury rules.

Last June, as we know, the Supremes said that EPA didn’t properly consider cost as it relates to the mercury rules and re-delivered the file to the DC Court of Appeals for it to reconsider. That lower court will rehear the arguments but it has already decided that the law could go forward until it is resolved.