Speed Bump: Supreme Court Puts Hold on Chrysler/Fiat Merger

It seems the marriage of Fiat and Chrysler has hit a speed bump (NYT):

Justice Ruth Bader Ginsburg, who handles emergency matters arising from the United States Appeals Court for the Second Circuit, issued a stay of the sale, preventing Chrysler and Fiat from completing the transaction immediately.

There’s a slim possibility this could become a serious roadblock to the merger, which was set to conclude at 4 p.m. today after the Second Circuit denied the stay and allowed the expedited path to merger to proceed.  Now, instead, there could be a delay of weeks, as Ginsburg and possibly the full Court decide what to do.

The arguments being made by the pension funds — the Indiana State Teachers’ Retirement Fund, the Indiana State Pension Trust, and the Indiana Major Moves Construction Fund — are pretty interesting and could have wide-ranging consequences, should Ginsburg choose to pass the issue up to the full Court.  The mostly likely argument to get them anywhere, as the Wall Street Journal’s law blog summarizes, is that they’ve had their constitutional rights violated by this deal, because junior creditors were privileged over senior lenders in Treasury’s deal.  The funds might have standing to argue that, but will need to prove existing, specific harm.

The trickier charge, and the one that makes me more uneasy, is this:

The United States Department of the Treasury (“Treasury”), purporting to  utilize powers conferred upon it by the Troubled Asset Relief Program (“TARP”) established under the Emergency Economic Stabilization Act of 2008, 12 U.S.C. 5201 (“EESA”), will have been permitted to structure and finance the reorganization of Chrysler without any judicial review of its authority to do so (the Bankruptcy Court incorrectly disposed of the issues by deciding that Appellants lacked standing);

Full text of the Pensioners’ Application is here, in PDF.  I’m not uneasy because I think that’s a bad charge — rather, it certainly seems like it’s true.  TARP hasn’t undergone any significant judicial review, and it seems like, if challenged, the authority of Treasury and the Fed to intervene in rescuing companies like G.M. and Chrysler, particularly when their decisions have involved the kind of leverage that comes close to outright threats, could crumble.  Beyond that, my faith in the lawyers at Treasury in particular is pretty thin, so I’m not sure I believe that they drew this up in an unassailable way.

I don’t think the Constitution prohibits the government from intervening in business in the U.S.  But I can certainly see how the current methods, which have at times felt slap-dash, might be unraveled by the Court.  Is that for the better?  I don’t know.  I don’t completely buy anymore the argument that Chrysler needs to be turned around in 30 days to survive, though I do believe that its workers will suffer more and harder for each day that the merger is delayed.

I’m actually hoping Eric Holder will have to issue a statement about this.  In fact, I find myself suddenly wishing that Holder was part of that Auto Task Force surrounding the president last week.

Were I To Be Nominated

Were I to be nominated to the Supreme Court, I think I’d like everyone to know I, too, used to read a lot of Nancy Drew books.  The new case files, not the old set, but only because they were cheaper and more readily available.  These were the days before Amazon.  Don’t judge me too harshly.

Were I to be nominated to the Supreme Court, I’d like everyone to know that the last album I bought was Green Day’s “21st Century Breakdown,” and that I listened to it all the way through twice.  I’d also like them to know I do this with nearly every album I buy, because I respect the order that the artist chooses for their songs.  It might be important to note that, while I do buy the occasional single, I am mostly an album collector, whether through iTunes purchase or through gifts/trades from friends.  Into this you may read either an abiding regard for, or a blatant disrespect of, intellectual property rights at your will.

Were I to be nominated to the Supreme Court, I hope no one would hold it against me that I use both a P.C. and a Mac.  I understand that this kind of open-minded technological embrace could be seen by some as signaling a flippy-floppy, go-with-the-flow nature that would make me a danger on the Court, likely to be swayed by whichever side had the shiniest apps.  In reality, though, I think it speaks to my ability to see both sides of an argument.  (And if forced to choose sides: Apple.  See?  I’m decisive).

Were I to be nominated to the Supreme Court, I worry I would have to buy more suitable clothing, and possibly hire a stylist.  Since people are already comparing Sonia Sotomayor to Susan Boyle, I can’t imagine any flattering comparisons in my own future.  I can’t sing, for one.  And I think there may be salsa on my shirt right now.  Does this disqualify me from the bench?

Were I to be nominated to the Supreme Court, I wonder if those columns I wrote for the college newspaper would come back to haunt me.  I suppose they would, despite often being composed during almost out-of-body experiences brought on by massive doses of caffeine, grease, fluorescent lighting, questionable (but loud, god, so loud) music, second-hand smoke, and long stretches without sleep.  I’m not saying I don’t take responsibility, but I’d like to see the people at Pepsi on the hook a bit, too.  But maybe the context isn’t important, and it should be assumed that the way I thought ten years ago is the way I think now.

Were I to be nominated to the Supreme Court, I hope I’d have enough notice to send out some very belated thank-you notes to everyone who attended my Kindergarten birthday party.  It was at McDonald’s and we had cake with whipped-cream icing, and I was so focused upon that cake and upon the various burdens of being six years old, I may have seemed distracted, or uptight, or even difficult.  I would hate to have anyone approach a reporter now and offer stories of my ungracious behavior, particularly knowing that filtering these things with something like research is not always how the journalism world works.

Were I to be nominated to the Supreme Court, I’d like to ask in advance that my name be spelled out for Mike Huckabee.  I know he’s busy, and it’s a hard name to remember, and through the telescope in his backyard maybe many planets seem to be of similar shape or something.  So if we could get someone to send him a little memo, that might make things easier.

Were I to be nominated to the Supreme Court, I believe I could learn to live with the disappointment I’d cause Rush Limbaugh.

But I doubt I’ll ever know, since this present pick seems to be going OK.

Supreme Court Justice Souter to Retire

NPR is reporting that Justice David Souter plans to resign in June, at the end of the Court’s current term:

Factors in his decision no doubt include the election of President Obama, who would be more likely to appoint a successor attuned to the principles Souter has followed as a moderate-to-liberal member of the court’s more liberal bloc over the past two decades.

In addition, Souter was apparently satisfied than neither the court’s oldest member, 89-year-old John Paul Stevens, nor its lone woman, Ruth Bader Ginsburg, who had cancer surgery over the winter, wanted to retire at the end of this term. Not wanting to cause a second vacancy, Souter apparently had waited to learn his colleague’s plans before deciding his own.

Souter, who’s 69, was appointed by President George H.W. Bush in 1990 and was expected to join the conservative majority — but has, instead, consistently voted with the liberal wing, including on decisions as important as Planned Parenthood v. Casey, where his written opinion argued for upholding Roe v. Wade.  Just yesterday, Souter defended the federal law that provides broader oversight to voting rights.

It’s very interesting timing, of course; the Democrats now have a new member, who sits on the Senate Judiciary Committee.  The upcoming nomination battle should prove a real test of Arlen Specter’s principles.  Specter voted to confirm Samuel Alito to the Court in 2005 despite Specter’s own pro-choice views.  That shows a willingness to put party before principle that, honestly, might work out nicely for the Democrats — unless Specter wants to make a point of his independence by opposing a new appointee, in the same way he seems to be standing firm on his opposition of Dawn Johnsen for OLC.  Further than that, Specter said his votes for Alito and Roberts were based on believing they were qualified for the jobs — which would seem to set him up to vote for any liberal candidate that Obama brings forward.

Just by the numbers, though, Specter’s vote on the committee might matter less than the totals on the Senate floor.  With any luck, the Democrats will have added another member — Al Franken — to the fold by the time the vote hits the floor, and it seems possible they might be able to recruit a Republican-lite other than Specter, should he decide to defect, to fight any filibuster threat.

The next question, of course, is who Obama will select — and when he’ll name the nominee.  Salon offered a nice list of 10 probables in November, and Sonia Sotomayor still seems to be the favorite.  Beyond that — I’d love to see Elena Kagan in the spot, but I imagine the administration doesn’t want to fight a Supreme Court battle at the same time they have to look for a new solicitor general.  On that one, I assume there will be wild — one might say pandemic — speculation in the next few days.

Luckily, the president has nothing else going on right now, and it’s not like the Court matters, so I’m sure this will be easy, quick, and painless.  Right?