The federal judiciary has the unfortunate distinction of being the target de jour of far-right extremists in Congress. While the impetus for Tom DeLay and John Cornyn’s recent spat of inflammatory proclamations against federal judges was seemingly unrelated to environmental protection, their comments reflect a larger scheme to reshape federal courts with disastrous consequences for our nation’s natural heritage.
The federal judiciary has the unfortunate distinction of being the target de jour of far-right extremists in Congress. While the impetus for Tom DeLay and John Cornyn’s recent spat of inflammatory proclamations against federal judges was seemingly unrelated to environmental protection, their comments reflect a larger scheme to reshape federal courts with disastrous consequences for our nation’s natural heritage. DeLay and his cronies in the GOP are implementing a multi-pronged strategy to pack the nation’s courts with ideologues loyal to their party’s funders. The nomination of extremist and environmentally hostile judges, the campaign to eliminate the filibuster, and the attempt to break up the Ninth Circuit Court of Appeals are each part of a larger picture. DeLay and friends want to develop a court system with predetermined outcomes. They’re running a full court press -- and the conservation community isn’t sitting on the sidelines.
Federal judges receive lifetime appointments so they can make decisions that are independent of the current political climate. But when the courts issue decisions that aren’t agreeable to the powers that be the temptation to “fix” the courts is enormous. The easiest way to ensure that the courts produce the “right” decisions is to jettison the notion of balance and nominate and confirm loyal ideologues. Under the current Senate rules this is very difficult, but majority leader Bill Frist (R-TN) is considering changes to make it much easier. The “nuclear option” would eliminate the minority party’s ability to filibuster and, in practice, allow the majority party to confirm nominees to the federal bench at will -- independent of how extreme, unqualified, or unacceptable to a broad constituency of Americans the nominee is.
I shudder to think what kind of damage the nation’s environment will suffer if the “nuclear option” is adopted and extremists such as current Ninth Circuit nominee William G. Myers (who, as a lobbyist for the mining and cattle industries, filed two amicus briefs with the Supreme Court arguing against the federal government’s ability to enforce the Clean Water and Endangered Species Acts) are granted lifetime appointments by a simple majority vote. The looming Supreme Court vacancy raises the stakes even higher.
But why should they settle for changing Senate rules when they can change the entire federal court system? In October 2004, the House of Representatives voted to split the Ninth Circuit federal appeals court into three new courts. The Ninth Circuit oversees nine Western states, the Pacific territories, three-quarters of all federal lands, and hears the majority of the country’s public lands cases. Because of this, the timber and mining industries, which profit from the unwise use of our public lands, have lobbied for years to split the Ninth Circuit. Thanks to California Senator Dianne Feinstein, who put a hold on the bill (S. 878), for now, the Ninth Circuit will remain intact.
Clearly, President Bush and the Congress are trying to shift the federal courts to the far right. This is not alarmist rhetoric or a wonky legalistic musing, but a sober assessment of the situation at hand. A recent report by Professor Cass Sunstein at the University of Chicago Law School found that appellate judges appointed by presidents Reagan, George H.W. Bush, and the current President Bush have more conservative voting records than judges appointed by any other president in the past 80 years. These voting patterns are particularly pronounced in cases involving the environment.
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Having been involved in environmental litigation for more than 25 years, I can honestly say that today, more than ever, the courts are absolutely critical in the struggle to protect and improve the nation’s environment. Fair and impartial judges are the foundation of a just and balanced democracy. If we allow the anti-environmentalists in Congress and the White House to compromise the objectivity of the courts, the federal government’s ability -- and the public's right -- to enforce the nation’s environmental laws will be crippled for generations.
Vawter "Buck" Parker joined Earthjustice (then the Sierra Club Legal Defense Fund) as an attorney in 1980 and became the Executive Director in 1998. www.earthjustice.org
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Source: An ENN Commentary
