Editorials and Opinion
Grassley aims for GOP political spin on federal judiciary (Reuters, 05/10/13)
Doug Kendall: "the D.C. Circuit’s stunning decision this week to strike down a National Labor Relations Board rule requiring employers to post signs reminding workers of their right to organize, is a clear indication of why this D.C. court has become an ideological battleground.... Republicans manufactured a controversy over Caitlin Halligan, President Barack Obama’s well-qualified nominee to the D.C. Circuit, and then torpedoed her confirmation through a partisan filibuster. Then the Republican members of the Senate Judiciary Committee, led by its ranking member, Chuck Grassley (R-Iowa), took a startling step: They introduced legislation that would eliminate three of the 11 judicial seats on the D.C. Circuit .... If Grassley were serious about his Orwellian-named “Court Efficiency Act,” he would not have ignored recent recommendations from the Judicial Conference,"
A Senate Republican Goal: Keep the D.C. Circuit Business Friendly (American Constitution Society Blog, 05/08/13)
Jeremy Leaming: "the D.C. Circuit has been controlled by conservative judges. There are four vacancies on the bench ... The D.C. Circuit has also proven hostile to environmental regulations that are often challenged by corporations."
How little-known judges could thwart Obama’s climate plans (Grist Magazine, 05/08/13)
Doug Kendall and Simon Lazarus: "there has been a concerted effort by conservatives to dominate the federal bench, and this bench in particular....Republicans have already led a successful filibuster against Caitlin Halligan, a highly qualified D.C. Circuit nominee who ultimately withdrew her nomination after more than two years of obstruction. Now they have introduced a bill to reduce the number of seats on the D.C. Circuit from 11 to eight in a nakedly partisan attempt to maintain conservative dominance over the makeup of the court.... It is time for the environmental movement to involve itself more in the conversation about nominations."
Broken Circuit: Obstructionism in the Environment’s Most Important Court (Environmental Forum, 05/01/13)
Doug Kendall and Simon Lazarus: "the D.C.
Circuit’s conservatives, particularly its farthest-right new members, Kavanaugh and Brown, may be responding to the signals sent by their allies on the Supreme Court ...Several recent decisions evince an uptick in the D.C. Circuit conservatives’ willingness to imperil major regulatory initiatives, and even undermine the institutional capacity of agencies to function ... There remain four vacancies on the D.C. Circuit. Protracted struggle will determine how many of those seats President Obama fills in the nearly four years remaining in his second term."
On the Importance of Judges (Environmental Forum, 05/01/13)
John C. Cruden, President, Environmental Law Institute: "At a recent meeting for environmental leaders held at the White House, we were asked whether our organizations really understand the importance of judges. I responded for everyone that you could not be in the environmental community without recognizing the critical importance of a well-informed judiciary in the upward trajectory of environmental policy....the United States has a staggering number of federal court vacancies: 68 in district courts and 17 in courts of appeal. Some 29 of these vacancies are considered to be emergencies. ... While all federal courts are important to environmental practitioners, the D.C. Circuit has a special place in our history and future."
Editorial: Earth Day (Darien Times [CT], 04/27/13)
"The first Earth Day on April 22, 1970, activated 20 million Americans from all walks of life and is widely credited with launching the modern environmental movement. The passage of the landmark Clean Air Act, Clean Water Act, Endangered Species Act and many other groundbreaking environmental laws soon followed. ... So for the benefit of all living things, including humanity, let’s focus on giving back to our planet which has given to us in such abundance."
EDITORIAL: Earth Day unnoticed at our perilmad (Madison Eagle [NJ], 04/26/13)
"The Great Pacific Garbage Patch, a huge gyre of plastic, chemical sludge and debris washed out to sea and concentrated by the North Pacific’s currents, is deadly to sea turtles and sea birds. ...A majority of biologists conclude that worldwide, a mass extinction of species is under way – due to human activity – that will dwarf the disappearance of the dinosaurs 65 million years ago.... That first Earth Day led to the creation of the U.S. Environmental Protection Agency and the Clean Air, Clean Water, and Endangered Species Acts ... Citizens who care about the Earth and future generations must redouble their efforts to make a difference."
Editorial; What We Think: A day to save the planet (Valdosta Daily Times [GA], 04/22/13)
"The first Earth Day led to the creation of the U.S. Environmental Protection Agency and the passage of the Clean Air Act, the Clean Water Act, and the Endangered Species Act.
There are those who will claim these acts have hindered human ambition and endeavor rather than help the planet. But these acts may well save the life-support system for our children and their children and all of our descendants to come."
Opinion: Labor fight one front in GOP war (The Hill, 04/15/13)
Juan Williams: "That strategy is so brassy that Sen. Chuck Grassley (R-Iowa), the top Republican on the Senate Judiciary Committee, has written a bill to cut the number of seats on the D.C. Circuit from 11 to eight. His clear intent is to stop Obama and the Democrats from ever having a majority on the court. Blocking the second highest court in the nation from properly functioning is a double win for the GOP. Not only do the Republicans keep the White House nominees off the court but they are also halting rulings on the activities of federal agencies. Without court decisions to back them up, the agencies can be blocked at any turn by threats of litigation. The D.C. Circuit, as Senate Majority Leader Harry Reid (D-Nev.) recently explained, is responsible for much of the litigation centered on federal regulatory agencies. For example, the courts often have the final word on the EPA’s controversial rulings on air and water quality. Those are major targets of GOP obstruction."
Obama's nominee to D.C. appeals court has implications for environmental policy (PRI: Public Radio International, 04/11/13)
"Tom McGarity, a law professor at the University of Texas, said the D.C. court is especially influential on matters of the environment, because of laws that proscribe many actions taken by the EPA as only being reviewable at the D.C. court. He says many environmental groups believe Republicans are deliberately slowing down nominations to the court, in order to preserve its conservative nature. ... The vacancies on the court have led to a dramatic increase in the caseload for individual judges.
"And the cases coming out of the D.C. circuit are slower and slower," McGarity said.... "The delivery of justice in this country is an important thing, and if we don't have enough judges, we’re not going to get justice, or we’re not going to get good justice," McGarity said."
Radical Republicans, Not the President, Have Created the Judicial Vacancy Crisis (American Constitution Society Blog, 04/04/13)
Jeremy Leaming: "The Republican obstructionists’ actions have likely had the most adverse effect on the D.C. Circuit ... It hears, for instance, challenges to new regulations aimed at enforcing the Clean Air and Clean Water federal laws. It is also a Court that tilts rightward and has shown great hostility to regulations aimed at protecting our environment – good for corporate interests, harmful to the health of many Americans.... Now the obstructions are honing in on another of the president’s nominees to the D.C. Circuit, the Principal Deputy Solicitor General Sri Srinivasan."
Stop blocking judicial nominees (Waterloo Cedar Falls Courier [IA], 03/13/13)
Christopher Schwartz: "Sen. Charles Grassley needs to stop the political games and confirm President Barack Obama’s well-qualified judicial nominees. Last Wednesday, Senate Republicans blocked a vote on a very qualified judicial nominee for the U.S. Court of Appeals for the D.C. Circuit, Caitlin Halligan. ... Every day there is a vacancy on a federal court, someone in America can’t have their rights protected.... What Grassley and the Republican senators did last week when they blocked Halligan’s confirmation was wrong. ... The D.C. circuit decides cases having to do with the balance of powers of the branches of government and decisions made by government agencies affecting issues like health care, national security, environmental rules, consumer protections and workplace safety. ... when the Senate refuses to fill one of the court’s four vacancies for political sake, we have a problem. ... Grassley, as the ranking member of the Senate Judiciary Committee, leads the charge in blocking Obama’s nominees. He needs to stop it, because our judicial nominations process is not a joke. It’s time our home-state senator takes this seriously, because right now he is seriously hurting Americans."
Not allowing a vote on Caitlin Halligan’s nomination to U.S. Court of Appeals was a missed opportunity (Dallas Morning News, 03/08/13)
"It is especially disappointing that Texas senators Cornyn and Cruz both voted “no.”
The D.C. Circuit court impacts all Americans: It hears cases on the balance of powers among government branches and government agencies’ decisions affecting health care, national security, environmental rules, consumer protections and more.
Nationwide, there are 89 judicial vacancies, including six on Texas’ federal district courts. Yet, there are no nominations to fill those Texas vacancies, an obligation that rests with Texas’ Senators." Letter to the Editor by Robin Zweig, National Council of Jewish Women, Greater Dallas Section
The Post’s View: Give Caitlin Halligan an up-or-down vote [Print headline: It's time to vote; On a judicial nomination, senators again abuse the filibuster] (Washington Post, 03/07/13)
"CAITLIN J. HALLIGAN has been waiting to become a federal circuit judge ever since President Obama nominated her — in 2010. Since then, she has languished in Senate confirmation hell ... again, Republicans successfully filibustered, denying a qualified nominee a fair shot at a seat on the bench and leaving the U.S. Court of Appeals for the D.C. Circuit short-staffed. ... the D.C. Circuit has lost another judge, leaving four vacancies. Yet it is the forum for some of the nation’s weightiest legal disputes, involving a wide range of federal matters — from Environmental Protection Agency regulations to detentions at the Guantanamo Bay naval base.... If it were fair to ascribe the views of clients to the lawyers who represent them, many members of Congress would no doubt have trouble explaining themselves.... Ms. Halligan’s record doesn’t come close to justifying what should be an extraordinary resort, filibustering a judicial nominee. That’s a standard that not only we believe in; it’s also one endorsed in 2005 by a group of senators known as the “Gang of 14.” Yet three of those senators — Susan Collins (R-Maine), Lindsey O. Graham (R-S.C.) and John McCain (R-Ariz.) — voted to sustain Wednesday’s filibuster against Ms. Halligan. ... When lawmakers hold nominees hostage to politics and ideology, trampling the legitimate prerogative of the president to staff the government and the judiciary, it degrades the effectiveness of government and the courts, deters qualified people from pursuing public service and poisons the politics in Washington."
GOP Still Aims to Make Obama a Failed President (Huffington Post, 01/07/13)
Earl Ofari Hutchinson: The GOP has several formidable weapons to hammer Obama. One is its power to say no in Congress. It has done that repeatedly in the Senate on one issue that has flown under the public's radar scope. It has refused to confirm legions of Obama's judicial appointees. He's had fewer of his judicial picks confirmed then any first term president in the last quarter century. That includes even district court nominees. In years past their confirmation has been routine. The GOP has given no hint that it will reverse course and approve many of his picks in the future. Conservative judges have already shown they can obstruct or torpedo Obama administration policies with their anti-environmental, anti-gun control, and pro-corporate rulings.
Reclaim the Courts (American Prospect, 12/03/12)
Trip Van Noppen, President of Earthjustice: conservatives control the Supreme Court, dominate the lower courts, and have a deep bench of well-groomed judicial candidates. The right is organized to evaluate judicial candidates based on a set of ideological litmus tests and to advocate for their favorites and against even moderate alternatives. ... what do progressives need to do?
First, create a lasting, focused vehicle to coordinate and exponentially expand funding.... Second, invest aggressively in research to develop public messages and to create the megaphones needed to deliver the stories.... Third, practice what we preach. Organizations that use the courts need to be bolder and more consistent in how they talk about the importance of the courts and how they advocate for the courts themselves ... In the civil-liberties, civil-rights, consumer, labor, environmental, and social-justice fields, we need to come together to reclaim and protect the courts. The threat is aimed at all of us, and the response will require all of us.
Four Seats On The Nation’s Second Most Powerful Court Are Vacant Come February (Think Progress, 12/03/12)
Ian Millhiser: "Sentelle’s partial retirement opens up the fourth vacancy on the D.C. Circuit, meaning that Obama could change this court — where Republican appointees currently enjoy a 5-3 advantage among active judges — into a 7-4 incubator for progressive legal thought.... many of the Obama Administration’s efforts at environmental protection have been choked in their infancy by the D.C. Circuit’s powerful conservative bloc."
The Clean Water Act at 40: Finishing a Task Well Begun (American Constitution Society Blog, 10/12/12)
William Andreen: "Two Supreme Court cases, SWANCC and Rapanos, have narrowed the Act’s jurisdiction in such a way that many formerly protected wetlands, headwaters, and intermittent streams are now fair game for degradation."
Editorial: No roads here; Court rules for pristine lands (Salt Lake Tribune [UT] , 10/03/12)
"The so-called Roadless Rule was put in place to protect the last few places in this country devoid of vehicles rattling and roaring down highways, lumber companies cutting down trees and oil and gas drilling rigs and their attendant machinery ruining the landscape and harassing wildlife. ...the U.S. Supreme Court put an end to the litigation this week [and] let stand the ruling of the 10th U.S. Circuit Court of Appeals upholding the Roadless Rule.
It is a landmark decision that should mean 50 million acres of roadless areas in national forests will remain unspoiled for future generations of Americans. ... Forests are more than simply trees. They provide habitat for wildlife, and watersheds to help slake the thirst of humans."
Importance of D.C. Circuit and Three Vacancies on Court due to Republican senators’ opposition and threatened filibusters (NBC News, 09/11/12)
Tom Curry: As powerful as the EPA is, the limits to its power are drawn by the court that gets to adjudicate most cases involving federal regulatory agencies, the U.S. Court of Appeals for the District of Columbia circuit. The court hears challenges to regulations issued not only by the EPA but by the National Labor Relations Board (NLRB), the Mine Safety and Health Administration (MSHA) and other regulators. “Whatever combination of letters you can put together, it is likely that jurisdiction to review that agency’s decision is vested in the D.C. Circuit,” Chief Justice John Roberts wrote in 2006. Last month in a two-to-one decision, that court blocked an EPA rule on cross-state air pollution that would have hurt coal producers and coal-fired plants. ... On the three-judge panel that blocked the EPA rule, the two judges in the majority, Brett Kavanaugh and Thomas Griffith, were both appointed by President George W. Bush. The dissenting judge, Judith Rogers, was appointed by President Bill Clinton. Since the political battlefield in 2013 and beyond is likely to be largely in the regulatory agencies, the D.C. Circuit court, which now has three vacancies on the 11-member court, will become even more significant. The Supreme Court grants appeals in only a tiny fraction of the decisions from the D.C. Circuit appeals court, so in most cases it is the end of the road for challenges to EPA’s rulings. One of Obama’s biggest frustrations and failures – due to Republican senators’ opposition and threatened filibusters — is that he has not been able to appoint anyone to that court. One Obama nominee, Sri Srinivasan, has not yet had a Judiciary Committee confirmation hearing. And last December Democrats failed to get the 60 votes needed to end debate on the other Obama nominee, Caitlin Halligan. Only Sen. Lisa Murkowski, R-Alaska, crossed party lines to vote to end debate and move to confirming Halligan.
Empty Benches (Boston Review, 09/01/12)
Pamela S. Karlan: a conservative legal movement has self-consciously sought to move the federal courts to the right as part of a campaign to roll back key pieces of existing legal doctrine, such as federal power to regulate the environment, broad protections against discrimination, and procedural rights for individuals accused and convicted of crimes. Recent Republican administrations have pursued a judicial nomination strategy that seeks to appoint young, deeply committed conservative lawyers to the federal district courts and courts of appeals. Republican activists pressed judicial nominations as a priority, and conservative presidents and senators worked hard to get these nominees confirmed. The result is not just a deep farm team of potential Supreme Court nominees, but also a host of conservative judges inscribing their views of constitutional law and their interpretations of statutes in thousands of cases that never reach the Supreme Court. If their cases are appealed to the top, then those judges’ opinions shape the terms of the debate in the high court.
When Obama was sworn into office, there were 55 vacancies on the federal bench. There are now more than 75. ... much of the problem is conservative obstructionism. Several of the president’s most prominent nominees have been filibustered. Many others have been victims of “blue slips”... vacancies accrued during a liberal-leaning administration that remain open for succeeding conservative administrations to fill will ensure that courts continue to skew to the right, meaning that progressive legislation and regulations will be undercut when it comes time to enforce them
Editorial: Battered EPA takes a hit (San Francisco Chronicle [CA] , 08/23/12)
"Other court rulings have upheld the EPA's powers in clean water and climate-change cases, underscoring the agency's status. But the whipsawing is bound to continue. ... In this case, the problem wasn't being handled by industry-friendly statehouses. Hence the job was taken up by Congress and given to the EPA to administer. The two-judge majority thought that the recent steps taken by Obama appointees to the agency exceeded the authority given by Congress. The EPA could appeal or pull back to a lower level of enforcement. ... But a meaningful effort to curb emissions must happen. The court decision can't be taken as an excuse for dirty air and polluted water."
In My Opinion: Glades vows kept thanks to the courts (Miami Herald, 07/21/12)
Carl Hiaasen: "without judges who are willing to yank a federal agency chief or even a governor into court, what remains of the Everglades has no chance of rebounding. To leave its fate in the hands of Tallahassee and Washington would be a death sentence."
A [Tampa Bay] Times Editorial: Scott has more strikeouts than hits (Tampa Bay Times [FL], 07/08/12)
"If Gov. Rick Scott were a ballplayer, he would be a pretty weak hitter. ... Fortunately, the judicial branch has acted as a check on the executive and legislative branches when they have trampled on the rights of Floridians or challenged the federal government for stepping in where the state has failed. ... Health care. The U.S. Supreme Court upheld nearly the entire Patient Protection and Affordable Care Act. Scott and Attorney General Pam Bondi led the fight against the law.... Air and water. In February, [Judge] Hinkle upheld most of the U.S. Environmental Protection Agency's water cleanup standards that Scott and Bondi sought to overturn and affirmed the EPA's authority to enforce the federal Clean Water Act. Two rules were tossed out on primarily technical grounds. In June, a federal appeals court upheld the EPA's efforts to regulate emissions of greenhouse gases."
Kmiec: Why Obama Will Win Health Care Case (America, 06/22/12)
Douglas W. Kmiec: Justice a"Kennedy’s middle of the road legacy is rightly important to him. Whenever the initial blandishments of his right-sided friends has pushed him to the edge, he has stepped back: this is true in everything from the abortion cases to Bush v. Gore, to the interpretation of the clean water act, the compensation for over-regulation of land, and his willingness to re-examine federal habeas rights for detainees—even after first seeming to close the door."
Progressives must take back courts (Politico, 05/07/12)
ANDREW BLOTKY: "Confronted by record judicial vacancies and unprecedented Senate obstruction in filling our courtrooms, the White House Monday is convening a summit meeting of 150 advocates and community leaders from across the country — to demonstrate that the courts are crucial for our nation. ... Every issue progressives care about today ends up in court. From education and immigration to the right to work; from clean air, water and food, to the right of the laws of the land to apply equally to all Americans; from protecting the right of our elected representatives to writing laws that protect consumers and providing for our health.... If you care about your issue, you should care about the courts. Or else our hard-fought gains will be undone by an increasingly conservative judiciary."
Why the Supreme Court Matters (Nation, 04/11/12)
Ari Berman column: "rightward shift of the Roberts Court is especially pronounced today .... The federal judiciary is as important as the Supreme Court— something the Bush administration understood in a way the Obama administration has not. By the time he left office, Bush had appointed a third of all serving federal judges ... Senate Republicans under Mitch McConnell have filibustered Obama’s nominees, ...March 27 marked the thousandth day with a record-high eighty vacancies on the federal bench. Obama’s judicial nominees have waited, on average, five times as long as Bush’s to be confirmed by the Senate. Obama has appointed forty-five fewer justices than Bill Clinton and thirty-six fewer than Bush at similar junctures of their presidencies. Obama could leave office with more judicial vacancies than when he entered."