Courting
Disaster
Bush judicial nominees
could shake the foundations of environmental law
By Glenn
Scherer
20 Jan
2005
William G. Myers
III is George W. Bush's choice for a lifetime position on the U.S. 9th
Circuit Court of Appeals. That court's jurisdiction covers
three-quarters of all federal lands, in nine Western states where
contentious battles rage over energy, mining, timber, and
grazing.
Which way
will the scales of justice tip?
Unlike most
judicial nominees, Myers has never been a judge. Instead,
his
qualifications
include decades as a paid lobbyist and lawyer to the coal and cattle
industries. In his recent position as the Bush Interior Department's
chief attorney, Myers tried to give away valuable federal lands to a
mining company and imperiled Native American sacred sites. "His
nomination is the epitome of the anti-environmental tilt of so many of
President Bush's nominees," says Sen. Patrick Leahy
(D-Vt.).
Democrats
aggressively blocked Myers' appointment with a filibuster in 2004. So
when his nomination lapsed at the end of this past congressional
session, many legal experts assumed it was dead, along with the
nominations of nine other judicial candidates that were blocked by
Senate Democrats for their extremist ideology, industry ties, and/or
ethical problems. But on Dec. 23, while Americans were distracted by
the holidays, the president gave his corporate backers (especially
those in the energy and mining industries) a Christmas present: He
announced his intent to renominate seven of the filibustered
candidates, including Myers. (The other three were given the option of
being renominated, but withdrew themselves from
consideration.)
"Renomination on this scope and scale of so
many judges who the Senate has refused to confirm has never happened
before," says Glenn Sugameli, senior legislative counsel
for
Earthjustice, a
nonprofit public-interest law firm. Noting that Congress has already
confirmed 204 of Bush's appointees, Sugameli asserts, "President
Bush is trying to convert the Senate into a rubber stamp that will
confirm 100 percent of his judicial nominees. That is what is really
at stake here."
Also at
stake is the future of the U.S. environment. While much attention over
natural-resource protection is focused on the executive and
legislative branches of government, most decisive battles for the
environment are won or lost in the judicial branch. And with Supreme
Court Chief Justice William H. Rehnquist fighting cancer, and three
other justices in their 70s or 80s, the president may have the chance
to fill up to four Supreme Court vacancies with right-leaning
anti-environmentalists.
Bush plans to
go to the mat for his judicial nominees.
Photo:
WhiteHouse.gov.
But as
important as those nominations are, Bush's nominations to the lower
federal courts are as crucial to the environment. While the Supreme
Court takes on less than 100 cases per year, the circuit (or
appellate) courts hear more than 40,000 appeals annually and set most
legal precedents that become the law of the land.
There are
currently 37 federal judicial openings, with 15 of those on the
circuit courts of appeal. For the environment, some of the key open
judgeships include three vacancies on the District of Columbia Circuit
(the court that hears most environmental cases involving
executive-branch regulatory agencies such as the Interior Department,
the U.S. EPA, and the Army Corps of Engineers), as well as seven
vacancies on the West's 9th Circuit.
"In
many ways, the courts are more important than either Congress or the
executive-branch agencies," says Patrick Parenteau, professor of
environmental law and director of the Environmental and Natural
Resources Law Clinic at the Vermont Law School. "Congress may
enact the laws, but it does so in very broad, sweeping terms. It is
the courts that interpret, apply, and enforce the statutes."
Without the courts, such landmark legislation as the Clean Air and
Water acts could have been stillborn, he says. "If you don't have
courts and judges willing to take a strong stand, those laws never
take effect on the ground. They don't change how things are done. The
courts give teeth to environmental laws."
President
Bush, however, seems intent on extracting those teeth. And one of his
key strategies for doing so is to pack the federal courts with
right-wing extremists. The likely result could be one of the most
heated Senate battles over judicial nominations ever, with some
experts predicting the struggle will be a defining moment of Bush's
second term.
Taking Care of Business
Perhaps the most disturbing trend in Bush's
judicial appointees is their increasingly common links to industry.
More than a third of Bush appointments to appellate courts and the
U.S. Court of Federal Claims during his first term -- 21 of 59
nominations since 2001 -- have worked as lawyers or lobbyists for the
oil, gas, and energy industries, according to a new
investigation by
the Center for Investigative Reporting. Three of these energy
industry-linked Bush nominations have been made to the critically
important 9th Circuit (with one confirmed so far), another nominated
but not confirmed to the D.C. Circuit Court, and four confirmed to the
little-known Court of Federal Claims, which deals with "takings"
property claims made by developers and industry against the
government. "The placement of the nominees suggests an
administration strategy of nominating corporate-friendly judges in
circuits where they will make the greatest impact," notes CIR.
"In many cases, these same corporations and industries are also
major campaign contributors to the Bush administration and the
Republican Party."
Sheldon
Goldman, a political science professor at the University of
Massachusetts at Amherst and expert on the history of the nominating
process, notes that reliance on special-interest lobbyists to fill
prime posts on the federal bench has been rare under past presidents,
and he raises questions about the Bush justices' ability to be
"fair-minded and objective." Goldman reveals in a 2003
Judicature journal article that 9.6 percent of Bush district-court
appointments had come from large law firms with 100 or more lawyers,
of the type that represent large corporations, while the percentage
was just 2 percent under Jimmy Carter, 6.2 percent under Ronald
Reagan, and 6.6 percent under Bill Clinton. Of recent presidents, only
Bush Sr. recruited a slightly higher percentage of appointees from
large law firms, coming in at 10.8 percent.
But Roger
Pilon, vice president for legal affairs and director of the
ultra-right Cato Institute's Center for Constitutional Studies, denies and downplays such
industry ties. "Twenty-one out of 59 judicial nominees had close
ties to mining and other extraction industries? It is factually
nonsense," he says. "And even if it were true, so what?"
Pilon contends that just because judicial nominees lobbied or lawyered
for big business and big polluters, that's no reason to think that,
once appointed, they will show bias toward their old clients and
against the environment. He calls such thinking "Marxist
class-analysis claptrap."
But
obviously the National Association of Manufacturers thinks otherwise.
This powerful business lobby is about to launch a multimillion-dollar
campaign to aid the White House in its bid to win approval for its
judicial nominations, reports the Los Angeles Times. The head of the
association, former Michigan Gov. John Engler (R), a longtime friend
of the president, implied in his Times interview that the
appointment of federal justices is important to business, partly
because of judges' roles in civil liability cases. (Such cases might
include corporations being held liable for oil spills, damaged
fisheries, toxic waste-causing cancers or birth defects, etc.) It's
expected that pressure from the association's powerful members, such
as General Motors, might force the reversal of some Democratic
senators who fought Bush's most egregious corporate-connected nominees
in his first term.
All of
this strife over judicial nominations seems to challenge the old
stereotype of an impartial U.S. judiciary. And indeed, a new study shows that political party
affiliation does make a difference when it comes to the environment
and judges. The study, by the nonpartisan Environmental Law Institute,
looked at 325 federal trial and appellate court rulings between 2001
and 2004 concerning the National Environmental Policy Act, a
foundation of U.S. environmental law that requires all federal
agencies to take into account the impact of their actions on the
environment.
It found
that a plaintiff with pro-environmental goals had less than half the
chance of success before a Republican-appointed judge (a 28 percent
success rate) than before a Democratic appointee (59 percent success
rate). Conversely, plaintiffs with pro-development or industry goals
were successful only 14 percent of the time before Democratic
appointees, but 58 percent of the time before Republican
appointees.
The GOP
judges' anti-environmental stance has grown more pronounced under
Bush. Of the 23 NEPA cases heard by the president's appointees, only
four were decided in favor of the environment -- that's 83 percent of
cases decided in favor of industry, a marked decline from the already
poor environmental success rate scored with nominees of past
Republican presidents. (The report does note, however, that the Bush
judges have served for such a short time that more data will be needed
to fully affirm this trend.)
The NEPA
study "may or may not show bias on one or both sides," notes
Sugameli. "But what it does clearly show is that who sits on the
courts matters. It makes a difference, and affects people's ability to
breathe clean air, drink clean water, and to enjoy special
places."
Law and Disorder
Bush
appointees, though relatively new to the federal bench, are already
attempting to reinterpret landmark environmental decisions and change
the way the statutes apply. In defiance of precedents and the public
interest, the 9th Circuit's Richard R. Clifton in a dissenting opinion
would have allowed a national-forest timber sale to go forward despite
an environmental group's injunction to stop the sale. Meanwhile, the
5th Circuit's Edith Brown Clement and Charles Pickering (both Bush
appointments) have joined in a dissenting opinion that would have
allowed a commercial and residential development in Texas, despite the
risk to listed endangered species living on the site.
But as
troubling as this initial erosion of environmental statutes might be,
and as damaging as it could eventually become to specific locales and
species, worse may lie ahead. Though individual judges can do severe
environmental harm, higher courts can still overturn their decisions.
Now, though, some ultra-conservative Republican-appointed judges are
working to challenge the very constitutionality of environmental law.
And new Bush nominations to the appellate courts and Supreme Court
could provide the majorities needed to achieve that goal.
"The
most important long-term issue before the U.S. Supreme Court, and the
lower courts, is New Constitutionalism," says Sugameli. This
extreme anti-regulatory philosophy, also called New Federalism, has
been refined by corporations, right-wing think tanks, and the
ultra-conservative Federalist Society. Born in the Reagan era, New
Federalism opposes big government, and especially the intrusion of the
federal government into state and local public services and economic
and regulatory matters, according to the Cato Institute
website.
New
Federalism would repudiate a broad interpretation of the U.S.
Constitution's Interstate Commerce Clause, upon which much of federal
environmental law is based. Until the 1930s, this clause was used
primarily to regulate trade between states. But from Franklin
Roosevelt's New Deal era to the present day, judges have interpreted
the clause as granting Congress the power to regulate business with
regard to wage and hour limitations, health and safety, and the
environment.
William G.
Myers III.
Photo:
DOI.
Some Bush
nominees, however, say Congress has no authority to enact such
measures. William G. Myers, for example, has argued in amicus briefs
submitted to the Supreme Court that federal clean-water and
endangered-species safeguards are unconstitutional. The Cato
Institute's Roger Pilon agrees: "The Endangered Species Act is
utterly unconstitutional," and so are the Clean Air and Water
acts "for the most part," he asserts. "The commerce
power was written to ensure the free flow of commerce among the
states," period.
Destroy
that constitutional foundation and you deny Congress the authority to
provide most environmental protections, thereby causing the entire
federal environmental regulatory structure as it exists today to
collapse. It is a radical strategy that, if successful, would shred
the safety net of federal laws that has safeguarded the environment
for more than 30 years, and which Americans have come to take for
granted. Pilon urges that this safety net be replaced with a patchwork
of state environmental laws, an approach whose utter failure helped
prompt the creation of the federal EPA by Richard Nixon in
1970.
New
Federalism doesn't stop there. Anti-regulatory judges -- led by
right-wing Supreme Court Justices Antonin Scalia and Clarence Thomas
-- also want to severely limit public access to the courts. In
particular, they would like to outlaw most citizen lawsuits, thereby
barring nonprofit environmental groups from launching cases against
polluting industry, uncontrolled development, and unresponsive
government.
Pilon
contends, along with many Bush nominees, that environmental groups do
not have "standing" -- that is, they are not directly harmed
(as an individual might be) by environmental damage, so they have no
right to sue. Conservatives also say that neither environmental groups
nor individuals have a right to sue when private industry damages the
commons -- public lands or waters owned by all of us. If a polluter
harms the commons, they say, only the government has the right to sue.
And if the government fails to act, the public's only recourse would
be to vote out the unresponsive officials.
Barring
access to courts is antithetical to democracy, says Sugameli. It
biases the system against nonprofit citizen's groups and in favor of
businesses. It is also prejudicial. "There is no question that
corporations will continue to be able to go to court whenever they
don't like an environmental protection," he says. "But there
is a serious question as to how much citizens will continue to be able
to go to court when they feel that environmental laws are protecting
corporations and not people."
Bush
conservatives have hit upon still another strategy for attacking the
environment: property rights. If Scalia and Thomas were to be joined
on the Supreme Court by like-minded Bush-appointed justices, they
would have the majority needed to set precedents giving industry
privileged private-property rights. "For at least 25 years, since
President Reagan, the property-rights movement has asserted that
property ownership is absolute and enshrined in the Constitution,"
says Jay Feinman, a professor at Rutgers University School of Law and
author of
Un-Making Law. That movement sees property rights as a core value
of democracy, trumping the authority of Congress to make laws reducing
pollution or preserving natural resources. When the government wants
to protect air quality, wildlife, or wetlands, the movement contends,
it must pay for all profits lost in the forsaking of economic
activity, which industry leaders have cleverly -- if erroneously --
labeled "takings."
This very
broad definition of property rights, based loosely on the 5th
Amendment of the Constitution, has been repeatedly asserted by
conservative Republican judges on the federal bench, and especially by
Bush appointees. Myers has taken the extreme view that property rights
should receive the same level of constitutional scrutiny as free
speech. "What we've seen in the Bush administration is appointees
who come out of this property-rights movement and have ties to
industry, and who we can expect to advance the cause to undermine
government regulation," says Feinman.
Going Nuclear
With
Republican control over the executive and legislative branches of
government nearly total, Bush's second term will likely be defined by
a struggle to solidify control over the judiciary. Two of the best
predictors of the probable intensity of that struggle will be the
willingness of the Senate to ignore its own time-honored judicial
appointment-approval rules, and the extremism of Bush's nominees for
open judgeships.
In 2004,
conservative Republican senators, angry over Democratic resistance to
Bush appointments, began threatening to change Senate rules that would
prohibit the blocking of judicial appointments through filibusters.
The new rule would do away with the required 60 votes needed to
approve judges and replace it with a simple majority vote. "This
is called the nuclear option by its proponents, because even they
recognize that such a move would blow up the Senate, ending all chance
for cooperation on any issue," says Sugameli.
As the
2005 congressional session got under way this month, Senate Majority
Leader Bill Frist (R-Tenn.) set the stage for this "nuclear war"
by announcing that he will seek approval in February for an unnamed
Bush judicial nominee. If Democrats filibuster that nominee, he says,
then the nuclear option could come into play, reports the Associated
Press.
Richard
Epstein, a conservative law professor at the University of Chicago, is
critical of the nuclear option but doesn't think it would "blow
up" the Senate. "What is important is that the same rules
apply to a Republican president and Congress as to a Democratic
president and Congress," says Epstein. Democrats are hopeful that
Frist will not dare launch the nuclear option, especially since Sen.
John McCain (R-Ariz.) has come out against it, citing the divisiveness
it would cause.
As for the
extremism of Bush's second-term nominees, his renomination of the
seven candidates already blocked by the Senate doesn't bode well for
the environment. Among them are such property-rights extremists as
Myers and Janice Rogers Brown, who was nominated to the D.C. Circuit
and opposed by 35 national and state environmental groups. Brown has
declared that the Supreme Court's 1937 decision upholding the New Deal
as constitutional "marks the triumph of our own socialist
revolution." And her extreme views on property rights caused her
to claim that private property is now "entirely extinct in San
Francisco" and that the city is implementing a "neo-feudal
regime."
As for the
Supreme Court, "All the indications are that the people being
looked at to fill those vacancies [should they arise during Bush's
second term] would include many with very extreme positions,"
says Sugameli. Bush could also try to elevate either Scalia or Thomas,
his two favorites and the two most anti-environmental justices, to the
chief justice position.
Bush's
lifetime appointments to the federal courts -- most of whom seem to be
intentionally selected because of their youth -- will shape and
dominate environmental jurisprudence for many decades to
come.
Right Young Things
Parenteau believes that the right-wing judicial
strategies being pressed by the Bush administration amount to a
corporate coup d'etat in which private special interests trump the
public good and democracy. "It is probably not hysterical to
characterize our situation as a constitutional crisis, because I feel
that the majority values of this country are still strongly in support
of strong laws protecting the environment. But what is happening is
that those laws are being picked apart, dismantled, and deceptively,
stealthily, slyly undermined. I think that our government's checks and
balances are breaking down," as corporations gain a death grip on
all three branches of government.
Sitting
Supreme Court Associate Justice David Souter has long warned against
the judicial use of constitutional arguments to invalidate Congress's
authority to regulate commerce -- a tactic that could negate
environmental, public-health, labor, minority, and women's
civil-rights protections in one massive strike. New Federalism is not
new, he contends, but will march America back to the Lochner era of
the courts, which lasted from the post-Civil War period until
Roosevelt's New Deal.
Joseph
Lochner was a New York baker whose corporate right to force employees
to work 60-hour weeks was upheld by the Supreme Court. For seven
decades, the courts maintained a laissez-faire attitude about business
practices, ruling that the economic sphere was off-limits to
congressional regulation, and that private property, especially
corporate private property, was sacrosanct. That era's policies
spurred political and corporate corruption, spawning the Robber Baron
industrialists, a yawning gap between rich and poor, civil unrest,
labor strikes and riots, bomb-throwing anarchists, two presidential
assassinations, fierce government repression, genocide against the
American Indians, and the near extinction of the American buffalo. It
was an era whose gross human injustices were only reversed by New Deal
reforms.
In the
face of a kind of Lochner-era redux, environmental groups have little
recourse, Feinman fears. "Other than opposing judicial
nominations, we have a real problem here. We can't just wait for the
next election, or defeat a bill in Congress. With the judiciary, we
are dealing with a matter of constitutional law. Once high courts rule
in an area, there is nothing that can be done by executive action, or
by legislation, to change things. That's the end of the story. We
could see a rollback of environmental law as part of a much broader
rollback of government protection of the public interest. Once again,
what is good for General Motors is good for the
U.S.A."
"Maybe the Cuyahoga River has to burst into
flame again," concludes Parenteau, referring to a pivotal outrage
in 1969 that helped launch the environmental movement in the following
years. The United States may need to see drastic climate shocks, or
Bhopal-scale tragedies, before the public becomes determined enough to
reverse the Bush administration's judicial excesses. The political and
social shape that such a rebellion might take -- and how long it might
take to emerge -- is anyone's guess.
- - - - -
- - - - -
Glenn Scherer
is an author and freelance journalist whose stories have recently
appeared in Salon.com, TomPaine.com, and other
publications. He is former editor of Blue Ridge Press, a syndicated
environmental commentary service in the Southeast.