Environmental Protection

Slow start on appointments could hold back Obama’s enviro policies


The Obama administration got off to a historically slow start with judicial confirmations, a panel of law professors and court-watchers said today during a discussion at the National Press Club.

Environmental groups fear that vacancies on the federal courts, where Republican-appointed judges have a 95-63 edge over Democratic appointees, could ultimately hamstring the Obama administration’s efforts to implement environmental and energy policies. This week’s monumental campaign finance ruling in Citizens United v. Federal Election Commission could remind the administration of the importance of judicial appointments, said panelist Doug Kendall, president of the Constitutional Accountability Center.

“The president and administration finally seemed to realize how much the future of the federal judiciary matters, and hopefully, that will translate this year into both greater attention and greater energy within the administration on this issue,” Kendall said during the panel discussion, sponsored by the American Constitution Society for Law and Policy. “It may be their best chance, over the next year, to put their mark on the future of the federal judiciary.”

More than 10 percent of federal judgeships are now open — about twice the usual number — and President Obama secured less than half as many judicial confirmations in 2009 as President George W. Bush or President Clinton did during their first year in office. There are 20 vacancies on the nation’s 13 circuit courts, and the White House has not yet named a nominee for 12 of them.

Two of the vacancies without nominees are on the closely divided U.S. Circuit Court of Appeals for the District of Columbia, which hears cases against U.S. EPA and the Federal Energy Regulatory Commission, among other agencies.

The D.C. Circuit is the venue for challenges to U.S. EPA’s December finding that greenhouse gases endanger human health and welfare. Unless Congress intervenes — for instance, by passing the disapproval resolution recently unveiled by Alaska Sen. Lisa Murkowski (R) — EPA could begin regulating greenhouse gas emissions under the federal Clean Air Act.

Kendall said Obama’s decision not to nominate judges for that court seems counterintuitive, considering that the court could end up ruling against climate change regulations he supports.

“One new judge’s vote on that court, either way, could decide profoundly important environmental questions,” Kendall said in an interview after the event. “You leave a vacancy on that court at your peril.”

Joined by several mining, energy and agriculture companies, a group called the Coalition for Responsible Regulation Inc. filed a petition last month asking the D.C. Circuit to review EPA’s decision. The Competitive Enterprise Institute, a free-market advocacy group, has said it will challenge the agency’s decision.

The endangerment finding was itself the result of judicial action, stemming from the Supreme Court’s 2007 decision in Massachusetts v. EPA. The court’s decision that EPA had authority to regulate greenhouse gases came down in a 5-4 split along usual lines, with Justice Anthony Kennedy joining the court’s bloc of liberal justices.

Why the delay?

Orin Kerr, a George Washington University law professor speaking on the panel, said concerns that the confirmation process is moving too slowly are primarily political. The Obama administration has not made judicial appointments a major priority, Kerr said, suggesting that the White House found itself preoccupied with policy issues and the confirmation of Justice Sonia Sotomayor to the Supreme Court.

Although the White House secured Sotomayor’s confirmation, shoring up the court’s left-leaning wing after the retirement of Justice David Souter, the administration fell short of its predecessors in securing confirmations for lower courts, where more than 99 percent of federal cases are decided.

Obama nominated 33 federal judges in 2009, and 12 were confirmed by the Senate.

The Senate confirmed 28 of 65 nominations during the first year of the Bush administration, and during Clinton’s first year, it confirmed 27 of 45. Democrats controlled the Senate at all three times.


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