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Judging the Environment judicial nominations photo
 

A project tracking federal judicial nominations and courts.


Editorials and Opinion

 

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Letter: Kudos to Schumer for questioning Gorsuch (Albany Times Union [NY], 02/22/17)
Brenda Bergstrom: Sen. Charles Schumer's reservations about President Donald Trump's Supreme Court nominee, Neil Gorsuch, ("Schumer leery of Gorsuch comment" Feb. 10 ) indicate the caution that characterizes true leadership.... Particularly glaring is his history concerning environmental regulations. Basically, he disputes the "Chevron Doctrine," which holds that courts should defer to the scientific findings of government agencies in determining challenges to enforcement of laws. Such challenges often come from industries objecting to environmental regulations. We can see where Gorsuch's approach would lead: that judges can disregard science and that corporations' rights override the rights of ordinary citizens to clean air, water and a livable climate. Because Gorsuch, like his mentor Justice Antonin Scalia, reveres the rights of corporations to free speech, he has shown no interest in restricting the role of big money in politics.

Gorsuch must show commitment to a democratic America (Cincinnati Enquirer [OH] , 02/21/17)
Joseph P. Tomain: Garland is also known for his fairness, decency, temperament and commitment to the rule of law. What distinguishes these two nominees is only one thing – politics.... The failure of the Senate to honor its constitutional duty by holding hearings on Garland highlights how politicized the Court is currently.... Can the White House benefit cronies and harm citizens by increasing safety risks and pollution, reducing or eliminating cost savings, and raising costs to consumers? Or can the will of Congress override the administration’s power grab by safeguarding agency action discharged in the public good? These questions will face the Supreme Court. Where does Gorsuch stand?

Letter: Resist Gorsuch (Post Independent [CO], 02/14/17)
John Hoffmann, letter to the editor: The editors of the Post Independent want the Democrats to play nice after the right refused to even vet Merrick Garland ... I would say be mad as hell and resist the carnage of the right anyway we can.

The Fate of Environmental Law in a Trump-Era Supreme Court: Given what we know now, those laws will almost inevitably be weakened in ways that are hard to predict (Scientific American, 02/08/17)
Guest blog By John Echeverria: Gorsuch has staked out positions on several crosscutting legal questions that have important implications for environmental law .... Critics of government regulation sometimes seek to apply the so-called nondelegation doctrine, which purportedly limits the power of Congress to make delegations of rule-making authority to administrative agencies. The Supreme Court has upheld nondelegation challenges to congressional enactments in only a handful of cases, both decided in the 1930’s, and the late Justice Scalia wrote an opinion for the modern Court rejecting a nondelegation challenge to the Clean Air Act. In a highly visible dissent filed in 2015, however, Judge Gorsuch offered a full –throated defense of the doctrine, suggesting he might try to lead an effort on the Supreme Court to breathe new life into the doctrine, an ominous prospect for modern environmental statutes that are commonly drafted with a broad brush. Gorsuch also has written opinions suggesting sympathy for the argument that courts should be reluctant to recognize that private environmental plaintiffs have “standing.”

LETTER: Donald Trump’s U.S. Supreme Court pick, Neil Gorsuch, would be a disaster for the environment (Las Vegas Review-Journal, 02/07/17)
Rosa Mendoza: In 1984, the U.S. Supreme court voted on the correct side of the law in the Chevron decision, which blocked judges from second-guessing rulings from respected entities such as the Environmental Protection Agency. Judge Gorsuch argued against this environment-friendly ruling, saying that the ruling overstepped boundaries. His opinion reflects a salient truth: He values big business over the environment.

It’s time to make Republicans pay for their supreme hypocrisy (Washington Post, 02/02/17)
E.J. Dionne Jr., Opinion writer: We are in for a festival of GOP hypocrisy in the debate over President Trump’s nomination of Judge Neil Gorsuch to the Supreme Court. Republicans will say that because he is decent and well-qualified, Democrats have no business blocking him. But it’s hard to find someone more decent or qualified than Garland, as many Republicans acknowledged. ... conservative judicial mavens have already made clear that outcomes-oriented jurisprudence is their thing now, even if they disguise it behind grandiloquent words such as “originalism” and “textualism.” Trump, after all, picked Gorsuch from a roster prepared for him by right-wing interest groups. Let this nomination also be the end of any talk of Trump as a pro-worker “populist.” Gorsuch is neither.... There comes a time when the only way to stand up against future abuses is to insist that there will be no reward for the abuses that have led us to this point.

EDITORIAL: Neil Gorsuch, the Nominee for a Stolen Seat (New York Times, 01/31/17)
"It’s been almost a year since Senate Republicans took an empty Supreme Court seat hostage, discarding a constitutional duty that both parties have honored throughout American history and hobbling an entire branch of government for partisan gain. President Trump had a great opportunity to repair some of that damage by nominating a moderate candidate for the vacancy, which was created when Justice Antonin Scalia died last February. Instead, he chose Neil Gorsuch, a very conservative judge from the federal Court of Appeals for the 10th Circuit whose jurisprudence and writing style are often compared to those of Justice Scalia.... The seat Judge Gorsuch hopes to sit in should have been filled, months ago, by Merrick Garland .... He is even more conservative than Justice Scalia in at least one area — calling for an end to the deference courts traditionally show to administrative agencies, like the Environmental Protection Agency, that are charged with implementing complex and important federal laws. Given the events of recent days, senators should press Judge Gorsuch on how he would approach constitutional questions that have already arisen out of Mr. Trump’s actions as president"

Predicting How Neil Gorsuch Would Rule on Environmental Issues: If he’s ever confirmed by the U.S. Senate (Legal Planet: The Environmental Law & Policy Blog, 01/31/17)
Prof. Ann Carlson: Given his stated conservative judicial philosophy and his supposed commitment to “textualism,” though, it seems safe to be that he’ll be a reliable conservative vote and a foe of environmental protection most of the time.

Editorial: Sessions’ right-wing values sure to follow him as AG (Chicago Sun Times, 01/11/17)
"In response to questioning during his Senate confirmation hearing Tuesday, Sessions .... avoided potential conflicts by soft-pedaled reality. In truth, every attorney sets priorities, informed by his or her own values, because there’s no way around it .... Even a big federal bureaucracy has a limit to its resources. A nominee might say “I’ll enforce the law” — they all do say that — but every attorney general is afforded huge latitude as to which laws to enforce aggressively. ... It matters, then, that Sessions holds unfortunate views on many of the big issues of the day. It matters that he has a retrograde public record on voting rights, climate change, same-sex marriage, the environment, immigration, incarceration, free speech and religious freedom. We are a nation of laws, but men and women enforce those laws. Or they do not."

Block Jeff Sessions for Attorney General (American Constitution Society Blog, 12/12/16)
Guest Post by Erwin Chemerinsky: The Civil Rights Division of the United States Department of Justice is responsible for enforcing laws prohibiting race discrimination in voting, employment, housing and policing. Nothing in Sessions’ career offers hope that he would be other than a disaster in doing so.... The Justice Department, through its Environment and Natural Resources Division, plays a key role in enforcing federal environmental laws. Here, too, Sessions has a terrible record.

Gazette editorial: Pollution’s champion to head EPA (Charleston Gazette [WV] , 12/10/16)
"Incoming President Donald Trump chose some abominable appointees: racist Jeff Sessions as attorney general .... now Trump has veered back to the abominable in choosing Oklahoma Attorney General Scott Pruitt — a fierce enemy of pollution controls and the Environmental Protection Agency — to head the EPA."

Senators Must Vote ‘No’ To Jeff Sessions As Attorney General: Senators could diligently review the record and vote their conscience. (Huffington Post, 11/22/16)
Christopher Kang: Senate Democrats can not stop this nomination unless Republicans join them, and based on the public statements of support so far, that doesn’t seem likely. Then again, I imagine this was also the analysis in 1986, when a Republican-controlled Senate considered Sessions’ nomination to the district court—before the Senate Judiciary Committee held two sets of hearings. Before Senator Howell Heflin (also of Alabama) withdrew his support, stating “fairness and impartiality go to the very heart of our justice system...as long as I have reasonable doubts, my conscience is not clear, and I must vote no.” Before two Republicans joined every Democrat on the Judiciary Committee in opposing his nomination. Before the Judiciary Committee rejected a lower court nomination for the first time in nearly half a century. What happened in 1986 could happen again today: Senators could diligently review the record and vote their conscience.

Another View -- Elizabeth Wydra: The promise and progress of the U.S. Constitution (New Hampshire Union Leader, 09/23/16)
"The promise of justice, for example, is threatened by the unprecedented breach by Senate Republicans of their constitutional responsibilities regarding judicial nominations. Since Republicans took control of the Senate in 2015, they have confirmed just 22 judicial nominees — a record low since the 1950s when the judiciary was half its current size. That leaves 90 vacancies on federal courts around the nation, 35 representing judicial emergencies, meaning they are vastly overburdened. These vacancies don’t just affect the nominees. They affect everyone. The speedy trial rights of criminal defendants are threatened. Civil cases are delayed. And citizens are denied timely justice on a range of issues including civil rights, clean air and water, corporate responsibility and reproductive rights. Perhaps the most well known of those vacant seats is the one on the Supreme Court, rendering the Court unable to reach decisions in tied cases."

End logjam of gridlock, fill federal court slots: Where We Stand [Editorial] (Orlando Sentinel [FL] , 08/21/16)
"An emergency exists in Florida's federal court system and the group responsible for fixing the problem — the U.S. Senate — just yawns and shrugs its collective shoulders. .... And it's not just Florida that is suffering. More than 10 percent of the nation's 677 federal district judgeships are vacant, awaiting approval by the Senate. In Florida, five of 37 district judge slots, 14 percent, are unfilled. ... With a smaller number of judges taking on the growing responsibility, workloads increase, delays lengthen and costs rise.... "It's like an emergency room in a hospital," said Southern District Chief Judge Federico Moreno. " ... Eventually you burn out."... justice delayed is justice denied. It's now so bad in Florida that four of the vacancies have been declared "judicial emergencies." ... in states that have both a Republican and Democratic senator, it is easy for one of them to stop such a vote, which in Florida is what Republican Sen. Marco Rubio did on Southern District nominee Mary Barzee Flores"

The Senate’s Unearned Vacation (Huffington Post, 07/14/16)
Michael Brune, Executive Director, Sierra Club: "there’s no more blatant shirking going on than the Senate’s failure to consider President Obama’s nominee to the Supreme Court, Judge Merrick Garland. The end of this week will mark 120 days since Judge Garland was nominated to the highest court in the land. Yet Senate Republicans have categorically refused to hold a hearing on his nomination. ... six Supreme Court nominees have been confirmed in the final year of a presidential term. The Supreme Court needs nine justices. Period. The Constitution is clear: The president nominates the justices, and the Senate provides “Advice and Consent.” By hindering the ability of the Supreme Court to function, Senate Republicans are holding our government hostage. Once the president has submitted a nominee, refusing to hold a hearing is partisan politics at its worst. These are momentous times for the United States, and a functional judicial branch is imperative. At stake are nothing less than the clean air, clean water, and climate action safeguards that we have fought for decades to secure"

Editorial: Extreme partisanship blocks judges, cripples federal courts (Palm Beach Post [FL], 06/27/16)
"Think it’s bad that we have an empty seat on the U.S. Supreme Court? Well, that’s just the tip of the iceberg. Senate Republicans have been so successful in their strategy of obstructing any nominees by President Barack Obama that there are now 89 vacancies in the federal courts system. Waiting to fill those spots are 58 nominees, the limbo for some going back almost a year and a half. That includes South Florida attorney Mary Barzee Flores, whose nomination 16 months ago has been blocked by her own senator, Marco Rubio. ... federal courts are where citizens go to protect important constitutional rights on voting access, the environment and discrimination. It’s where consumers and workers go to hold corporations accountable. With those courts crippled, essential liberties may be eroded."

EDITORIAL: Garland's Credentials Bona Fide. We Reiterate: Grant a Hearing (New Jersey Law Journal, 04/12/16)
"Then-Judiciary Committee Chairman Hatch observed, of the 1997 Senate (76-23) confirmation of Garland's nomination to the U.S. Court of Appeals for the D.C. Circuit, that no one dared to come to the floor to speak against Garland.... the Senate leader's refusal to even consider the president's nominee is without precedent.... when judges are seen as politicians in robes, confidence in the judiciary suffers. Thus the refusal to hold hearings until after the presidential election will do damage to the courts if it is sustained.... In our view, Barack Obama has proposed an ideal "consensus" candidate. One who has garnered bipartisan support in the past.... Merrick Garland is a judge whose record tells us that he models the kind of search for broad agreement that serves the courts and the country well. If the Senate continues to stonewall his nomination, it will embroil the Supreme Court in partisan combat that threatens confidence in the judiciary, as recent remarks by Chief Justice Roberts suggest. We join many others in urging the Senate to offer its advice and consent to the nomination of Judge Garland."

Senators Put Politics Above People in Obstructing Supreme Court Nominee (Huffington Post, 03/03/16)
Trip Van Noppen, President, Earthjustice: "In every Supreme Court vacancy in the history of our Republic, performing the “advice and consent” role has meant giving genuine consideration to a nominee; evaluating the person’s credentials and qualifications, judicial temperament and experience; and deciding whether the individual nominee should be approved. This has been the case even when a vacancy has occurred during a presidential election year. But apparently not this time. This time Senate Republicans are refusing to do their job. They stand to make American history by becoming the first Senate majority to put playing politics above doing their job by refusing to consider any nominee from the president, no matter how qualified the candidate may be."

Editorial: Another legal attack on the Chesapeake (Free Lance-Star [VA] , 12/21/15)
"The American Farm Bureau is once again appealing—this time to the U.S. Supreme Court—a lower court’s decision upholding the EPA’s authority to establish and enforce its plan to clean up the Chesapeake Bay.... The groups’ arguments have previously been rejected both by U.S. District Court and, unanimously, by the 3rd Circuit Court of Appeals.... These repeated court appeals have failed because the EPA is pursuing its role as stipulated by the Clean Water Act, passed by Congress and signed by President Richard Nixon in 1972.... Reagan took the EPA and its role in cleaning up the bay very seriously....Now, in an unwelcome case of déjà vu, come the court filings of 92 Republican congressmen and 22 attorneys general—all but two of them Republican—siding with the Farm Bureau in the case. ... The Supreme Court is expected to decide early next year whether it will take the case. A decision to let the lower court’s ruling stand—sending the petitioners home for good—would be welcome news indeed."

Editorial: The G.O.P.’s Worst Budget Riders (New York Times, 12/02/15)
"Many anti-environmental riders have been put forward by lawmakers in committees with jurisdiction over energy, water, air quality, public lands and endangered species. Arguably the most serious threat is one that would invalidate a new rule from the Environmental Protection Agency that clarifies which waters are protected under federal law from unrestricted dredging, filling and development.... The White House has said it opposes many of these riders, and has threatened previously to veto attempts to weaken the clean-water improvements. But in 2011, the administration caved on some environmental riders. ... Republicans in the House and Senate appear divided, with the House’s far-right caucus eager for a shutdown if it doesn’t get its way and the Senate leadership desperate to avoid one for fear it would hurt its party’s electoral prospects in 2016. That is an opening for Mr. Obama to do the right thing with harmful riders: Just say no."

EDITORIAL: Sea life dying from human failures (Virginian-Pilot, 09/29/15)
"According to a study this month by the World Wildlife Fund and the Zoological Society of London, half of the ocean's vertebrate population has disappeared in just four decades....Whether it's through overfishing, pollution or carbon dioxide emissions that cause the oceans to warm and acidify, humans are harming the planet and its mammals, birds, reptiles, amphibians and fish. The decline has been significant across most species, but it's worse for animals we rely on for food or income.... One in four species of sharks or rays is now under threat of extinction.... Protecting the oceans from exploitation should be part of a worldwide solution .... Reducing pollution and run-off will help take environmental pressure off the oceans' coastal species. So will reducing the emission of carbon dioxide and other greenhouse gases that are changing the composition of the oceans themselves. There is undoubtedly time to reverse the oceans' declines, but only if humans have the will."

Editorial: True conservatives support environmental protection (Richmond Times-Dispatch [VA], 09/20/15)
"A Democratic president’s trip reminds Republicans of their historic ties to environmentalism. Theodore Roosevelt’s embrace of conservation planted the seeds for the environmental movement. Nixon created the Environmental Protection Agency. New York Sen. James Buckley showed that certain “green” policies were compatible with conservative principles. Officials in Virginia and its neighbors have developed a heightened appreciation of the need for government intervention to save the Chesapeake. ... A faction among conservatives refuses, with sectarian zealotry, to concede the reality of climate change and the strong possibility than humanity has contributed to warming. A carbon tax deserves conservative support; cap-and-trade deserves serious debate. The Endangered Species Act has fallen under siege, too. Ideologues want to undermine its effectiveness and to limit its scope. This dismays.... the pope’s encyclical letter, “On Care for Our Common Home,” takes a broad view of humanity’s gifts and obligations that conservatives ought to find congenial. ... It is time for conservatives to listen to what their better angels have to say about the environment. Obama went north to Alaska; conservatives can apply much of his message to regions south of the Last Frontier."

N.J. shortchanged by Exxon Mobil wetlands deal | Editorial (The Times of Trenton [NJ] , 07/27/15)
"State Sen. Raymond Lesniak, D-Union County, was one of the first state lawmakers to express outrage when news broke in March that New Jersey had agreed to accept $225 million from the Exxon Mobil Corporation to settle a decade-long case. The state had originally sought $8.9 billion in compensation for environmental damage done to more than 1,500 of wetlands, marshes, meadows and waters in the Meadowlands.... Now a state Superior Court has turned down attempts by Lesniak and several environmental groups to intervene in the settlement. Judge Michael Hogan ruled that the activists' attempts to become parties to the suit would "unduly delay" the proceedings. Despite the setback, the settlement's opponents have pledged to continue to keep up the good fight. From Day One, Lesniak and Sierra Club Director Jeff Tittel have been wary of the deal – and with good cause.... It's hard not to feel that New Jersey residents are being sold down the river by all this. The Garden State deserves to be compensated for the loss of valuable public resources, not forced into a sweetheart deal of Chris Christie's making."

EDITORIAL: Raking in donations, shoveling bad policy (Virginian-Pilot, 07/07/15)
"Nutrient pollution causes algae blooms, which cause the bay's annual dead zones, which kill everything they engulf: fish, oysters, crabs, plants. That was the damage the Chesapeake Bay Agreement was forged to prevent. ... The agreement was eventually given some enforcement powers - the EPA could theoretically take control of clean-up if progress wasn't made - but Washington refused to act. Until the Chesapeake Bay Foundation sued to force the EPA to do so. In 2010, the bay states - which now include New York, Delaware and West Virginia - came under EPA orders to cut pollution in their waterways, although the states still decided how to reach the targets."

Editorial: Rep. Goodlatte takes aim at the Bay cleanup, again (Free Lance-Star [VA] , 07/05/15)
"The Chesapeake Bay Foundation is suing the state of Virginia for its failure to require farmers to erect fencing that would keep livestock out of the Bay’s tributaries. Virginia’s farmers are proving themselves a cooperative bunch. They are taking seriously key best management practices, .... But the improvement gained through those efforts is lost when livestock wades into streams and relieves itself, creating a significant sewage pollution issue. ... The state agencies would do well to revisit the permit language, add the fencing requirement, seek funding to assist the operations in meeting the provision and settle the suit. Money put toward that purpose is much better spent than on litigation defense."

EDITORIAL: Stop ExxonMobil settlement (Daily Record [NJ], 06/10/15)
"New Jersey’s pollution settlement with ExxonMobil for a mere $225 million — out of nearly $9 billion in damages the state had sought from the company in a lawsuit — has been the source of great angst among environmentalists. They’ve labeled the deal a sellout and for good reason .... This deal is so egregiously bad for New Jersey that critics aren’t content to just verbally blast away at Christie and move on. They want to stop this settlement before it’s finalized by the courts .... Seven environmental groups announced plans on Wednesday to jump in on a lawsuit seeking to block final acceptance of the settlement.... The ExxonMobil deal should be blocked. And future settlements with polluters should be devoted primarily to the environment. We urge lawmakers and activists to continue working toward both goals."

EDITORIAL: G.O.P. Assault on Environmental Laws (New York Times, 06/08/15)
"President Obama has announced or will soon propose important protections for clean water, clean air, threatened species and threatened landscapes. Mitch McConnell, the Senate majority leader, and other Republicans in Congress are trying hard not to let that happen ... the sage grouse initiative is a legitimate executive action aimed at carrying out Congress’s purpose in the 1973 Endangered Species Act, which was to save a species before it disappears."

Editorial: Earth Day serves as reminder of the goals we must pursue together (Free Lance-Star [VA] , 04/21/15)
"Given the science that tells us the realities and implications of climate change, however, it is clearly up to us to do what we can to combat it, delay it and adapt to it. With the 2016 presidential campaign already unfolding, it’s fair game to judge the viability of any candidate in part by whether he or she accepts the consensus of climate change research and will govern true to that belief."

EDITORIAL: Restoring delta must be part of tunnels plan (Fresno Bee [CA] , 04/20/15)
"U.S. Environmental Protection Agency said the plan would harm water quality and aquatic life, and increase pollution.... a focused, coordinated approach to restore habitat to help endangered and threatened species recover should be part of the governor’s new plan."