Progressive Cattleman asked William G. Myers III, an attorney and partner with Holland & Hart LLP in Boise, Idaho, about the new Supreme Court vacancy, how the nomination process might unfold in the coming year and his own judicial nomination hearing in the Senate.

Myers previously served as solicitor for the U.S. Department of Interior and deputy general counsel to the Department of Energy. In 2003, he was nominated to fill a vacant seat on the 9th U.S. Circuit Court of Appeals by President George W. Bush. His nomination went through years of delay under Senate filibuster rules. He eventually withdrew his nomination in 2007.

Help readers understand on what grounds judicial nominees can be filibustered.

The Senate voted in 2013 to change its rules and prohibit filibusters of lower court nominations and executive branch nominations. But the filibuster can still be used against a Supreme Court nomination. A single senator can mount a filibuster against a Supreme Court nominee for any reason he or she chooses. If successful, a filibuster prevents the nomination from coming to a vote on the merits. The only way to stop a filibuster is to get 60 or more senators to vote to stop it. If 60 or more votes cannot be found, then the nomination will not proceed to an up-or-down vote where a simple majority of voting senators could decide whether the nomination is confirmed or rejected.

What can the Senate majority do about it if they don’t have the 60-member majority?

Nothing, except perhaps try later to find the 60 votes, but that is unlikely since after the first failure to overcome the filibuster, the president is likely to withdraw the nomination or let it lapse at the end of the Congress.

Are the odds typically tougher for federal judicial nominees to get through in election years?

Yes, definitely, if the president and the majority party in the Senate are of different political persuasions. In that instance, there is a tendency to slow things down in the Senate in the hope that the next president will be in the same party as the Senate majority party. Even if the president’s party and Senate majority party are the same in an election year, the minority can try to slow things down along the way with the same goal in mind, election of a new president. In the case of a Supreme Court nomination, the primary tool of the minority party would be a filibuster.

That is why, under the current situation, it doesn’t make much sense to talk about filibusters. The filibuster is generally a tool used by a minority party to slow down the majority. Today, the Republicans control the Senate. They don’t need the filibuster to slow down an Obama nomination; they have other tools to delay action in hearings on the nomination and on committee and floor votes. And of course, they have the collective right to vote a nomination down if it comes to vote. The last Supreme Court nominee to lose a floor vote was Judge Robert Bork in the late 1980s; he was not filibustered.

Was this the case for you in 2004?

In 2004, the minority party (Democrats) filibustered my nomination and other judicial nominations made by President George W. Bush. That situation – occasional filibusters of lower court nominees by both parties – continued until 2013 when the Democrats were the majority party. They changed the rules to prevent the minority Republicans from continuing to filibuster some of President Obama’s lower court judicial nominations. If those rule changes had applied to my nomination, I may have been confirmed as a 9th Circuit Court of Appeals judge since a majority of the Senate voted to end the filibuster of my nomination.

Given your experience, how would you best describe the judicial nomination process?

The current process is predictable only after you identify, first, the parties of the president, the Senate majority and the Senate minority; second, the court that the nominee would join; and third, the nominee. Obviously, with that many variables, it is difficult to make any blanket statements about how a future judicial vacancy might be filled.

You have extensive experience in land, resource and energy law, both in the private and public sector. What key legal issues were being discussed in this year’s Supreme Court term, even before Scalia’s death?

A number of important natural resources and environmental issues come before the Supreme Court. Without trying to pinpoint specific ones pending in the court’s current term, they include private property rights, Clean Air Act, Clean Water Act, Endangered Species Act and a host of other high-profile issues that can affect your readers in dramatic ways.

It was reported the high court would hear the current challenge against the EPA and the Chesapeake Bay cleanup plan while having just eight justices. Could they issue a decision without a full court?

Yes, they certainly could. It is obviously possible for the court to issue a unanimous or majority decision with just eight justices. If there were a tie vote of 4 to 4, then the lower court decision stands as decided below.

Would a temporary judge be brought in as a ninth?

I have never heard of a Supreme Court justice sitting by designation from a lower court. That can and does happen in the lower courts of appeals and district courts, but not at the Supreme Court level.

If a nominee were passed to the court, how would the judicial math line up for the case challenging the U.S. Army Corp of Engineers’ authority to regulate Waters of the U.S.?

The WOTUS debate illustrates why all of the fuss is being made over the next justice. Conventional wisdom holds that an Obama nominee would be more inclined to uphold the Obama administration’s approach to WOTUS, and a new, possibly Republican, president’s nominee would be less inclined to do so. But that wisdom relies on past performance to judge future decisions. There are many instances where a justice has not “toed the company line” of the nominating president. Depending on your parochial view of the court’s decisions, that is the genius, or the tragedy, of the constitutional requirement of lifetime appointments.

What about if no nominee is passed? What might be the fate of the case then?

An eight-justice Supreme Court will decide any case that comes before it, one way or another, as described above. This can and does happen in other circumstances where a justice has to recuse himself or herself from a pending case, leaving eight justices to decide the matter.