However, there will still be one section of the building where partisan divides are apparent. Six of the nine Supreme Court justices are set to attend tonight’s speech, with all three absentees hailing from the conservative wing of the court.

Bloomberg reports:

Kathy Arberg, the Supreme Court’s spokeswoman, said that six justices are planning to attend tonight, though she wouldn’t specify which ones. Justice Samuel Alito is in Hawaii, and two other Republican-appointed justices, Antonin Scalia and Clarence Thomas, have strongly suggested in public comments that they won’t go.

Only two Republican appointed justices, Chief Justice John Roberts and Anthony Kennedy, will be in attendance whereas all justices nominated by a Democratic president will be at the speech.

The division between Obama and the conservative justices was readily apparent during last year’s State of the Union. In one segment of his speech, President Obama criticized the court’s ruling in Citizens United, to which Alito visibly responded by shaking his head and mouthing the phrase “not true.” After that interaction, some questioned whether it was proper for the supposedly impartial Supreme Court justices to attend the State of the Union speech. Nevertheless, the absence of the court’s three most conservative members at Obama’s speech will only increase the already-clear divide of the court.

The dismissal by the Fifth Circuit Court of Appeals in Comer v. Murphy Oil came after half of the court’s 16 judges recused themselves from hearing the appeal, effectively negating an October decision by a three-judge panel on the same court that allowed the case to proceed. The Comer class action suit was filed by Gulf Coast residents seeking financial damages from more than two dozen oil and coal companies for the local havoc wreaked by Hurricane Katrina, which the plaintiffs argued was exacerbated by the effects of global warming.

The plaintiffs now must decide whether to seek a hearing in the Supreme Court, an outcome deemed all but inevitable by the National Association of Manufacturers (NAM) in a Friday blog post reacting to the dismissal.

“Expect more appeals and suits from plaintiffs hoping to hit the jackpot and environmental activists trying to create a carbon-command-and-control economy through the courts,” NAM’s Carter Wood wrote. The group is a vocal critic of congressional climate legislation and filed a brief supporting an en banc hearing of the Comer case by the full Fifth Circuit after the initial ruling allowing the case to proceed.

Greenwire reported today (sub. req’d.) that the high number of Fifth Circuit recusals in Comer — generally an indication that judges have personal ties to the companies or law firms involved, such as stock ownership — “infuriated environmentalists” who viewed the moves as a sign that industry has all but captured the appeals court in the Gulf region. But a legal analysis published last month by the firm McGuire Woods suggested that the nation’s highest court could face similar recusal hiccups in deciding whether to hear a Comer appeal:

[T]he mass recusal of members of the 5th Circuit in Comer begs the question as to whether such recusals would be an issue for the U.S. Supreme Court as well. Initial analysis suggests it would. Justice Samuel Alito has recused himself on several occasions from cases involving ExxonMobil due to his ownership of its stock. See, e.g., Exxon Shipping v. Baker; American Isuzu v. Ntsebeza. Likewise, Justice Steven Breyer has recused himself from cases involving BP due to his ownership of its stock. See, e.g., New Jersey v. Delaware; Morgan Stanley Capital Group v. Public Utility Dist. 1. Both ExxonMobil and BP are defendants in the Comer suit.

Similarly, Justice Sonia Sotomayor would also likely recuse herself due to her participation in the Connecticut v. American Electric Power case [another high-profile climate case] when she was on the 2nd Circuit. … Indeed, it may not even be possible for the U.S. Supreme Court to hear any appeal in Comer.

The recusal issue, as Greenwire notes, could also come into play as lawsuits stemming from BP’s role in the Deepwater Horizon disaster move forward. We have a call in to the plaintiffs’ counsels in the Comer case, seeking word on whether they plan to petition for a Supreme Court hearing, and will update this post as more becomes known.

Although there’s no question that Sotomayor will be confirmed, she’s expected to receive only about ten Republican votes, at best, dashing President Obama’s initial hopes of winning strong bipartisan support for his first high court nominee. Concerns about guns, property rights and her alleged bias in favor of Latinas have dominated the Republicans’ explanations for why they won’t support her — though payback for Obama’s frequently mentioned votes as a senator against Justices John Roberts and Samuel Alito, and the Democrats’ refusal to allow a vote on appeals court nominee Miguel Estrada, also seemed to motivate Sotomayor’s GOP opponents.

Given that Sotomayor will be the first Hispanic on the Supreme Court, the strong Republican opposition could have costs for the party.

As Sen. Robert Menendez (D-N.J.) said at a rally yesterday: “To say you cannot vote for this qualified Latina sends a message to us, as a community, that we will not forget.”

Except for the support of Republican Sen. Lindsey Graham of South Carolina, who has said he believes President Obama is entitled to deference for his Supreme Court picks, the rest of the Republicans on the committee are expected to vote against Sotomayor’s nomination.

Whether the full Senate vote will be as partisan remains to be seen. As NPR noted this morning, when it came to President George W. Bush’s nominations to the Supreme Court, many Democrats voted in favor of both Justices John Roberts and Samuel Alito. Then-Senator Barack Obama, however, voted against both of them. Judging from some of the comments at the Sotomayor hearing, the Republicans on the Judiciary Committee, at least, have not forgotten.

The senators know that, of course, but that doesn’t stop them from asking lots of inane questions they know Sotomayor won’t answer. Sen. Lindsey Graham (R-S.C.) at times barely stopped peppering her long enough to let her start her answer before he moved on to the next subject: from racial preferences to gun rights to publicly funded abortions.

Perhaps most disturbing about the hearings wasn’t the political posturing, which is to be expected.  It’s the dishonest way in which the debate has taken shape between Republicans and Democrats, as if Democrats are squishy touchy-feely people who let empathy guide judicial decision-making, and Republicans are automatons who miraculously apply the law to the facts without letting any trace of humanity get in their way.

Harvard Law Professor Laurence Tribe aptly describes how a historic and arguably important debate about constitutional interpretation and judicial processes in this hearing has become completely disingenuous:

Attending to one’s prejudices and doing one’s best to set them aside is admirable. Convincing oneself that one can render judgments in a way that makes one’s personal experiences and views irrelevant is dangerous self-deception. Why, after all, do the justices so often disagree about what result “the law” commands? What accounts for their different perceptions of the rules of law that govern disputes and of the facts involved in those disputes? Justice Antonin Scalia, among others, has publicly said that his own background and upbringing necessarily influence how he decides cases. How could it be otherwise?

Tribe was actually criticizing Sotomayor for flip-flopping on her previous positions that acknowledged she and every judge would be influenced by her background and experiences. But I don’t see Sotomayor as changing her tune so much as having to over-simplify an inherently complex and delicate concept to a bunch of aggressively tone-deaf senators, now themselves sitting in judgment and arguably abusing that power.

Sotomayor has obviously been practicing patience: Despite what Graham called her “nasty” judicial temperament, even as she dodged the slings and arrows, on Tuesday she was often smiling.

“We’ll do everything we can to support Norm as long as he has appellate remedies to pursue,” Cornyn said. “I’m not suggesting Norm has this plan in mind, because frankly I think he’s hopeful it turns out well at the state Supreme Court. But as a former state Supreme Court judge and as a recovering lawyer for 30 years now, I would tell that if he were to lose, what happens is that the secretary of state and the governor are required to sign a certificate of election. Just as a procedural matter, if — and this is a big if — Norm were to decide to appeal this matter to the United States Supreme Court under the Bush v. Gore (2000) precedent, which says that under the Equal Protection Clause uniform counting standards are a Constitutional matter, that they could appeal to the United States Supreme Court. The justice that’s responsible for that area — I think it’s Justice Alito — could issue a stay in the issuance of the election certificate, and it could be referred to the entire court.”

Cornyn wasn’t sure that this would happen. “I say all this as ‘could,’” he said, “not as ‘will or should.’ It depends on what the Minnesota Supreme Court does. But at the oral arguments, Franken’s lawyers did argue about the applicability of the Bush v. Gore standard. It makes no sense, and it doesn’t meet the Supreme Court’s constitutional precedent, to say that one local election official can decide by one standard which ballots should be counted and that some official somewhere else could decide by a different standard.”

Cornyn also argued that there was a larger issue at play than whether the Democrats got a 60th Senate seat. “I’m very proud of Norm Coleman for fighting the good fight to protect the right of Minnesota voters to make sure all legitimate votes are counted,” said Cornyn. “That is the real question here. I realize it’s manifested itself in terms of who actually wins this seat, but I think that should be the focus.”

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