I have absolute right to do what I want to do with the Justice Department
--Donald John Trump, 45th President of the U.S.
This installment of the Here Comes the (Trump) Judges series continues the discussion of the potential long-term impact of Trump’s judicial appointments on climate and clean energy policies and programs. Federal courts in the Trump era are playing an increasingly pivotal role in the efforts of climate and clean energy advocates to maintain existing environmental protections—not only those put in place by the Obama administration but foundational policies and programs dating back to the 1970s.
Action by the Administration, with the complicity of Congressional Republicans, is not limited to rolling back regulations. It includes efforts to hamstring and gut the agencies and offices responsible for carrying out the many clean energy and climate policies on the books for combatting global warming.
In its haste to deregulate and defund, Administration officials from Donald on down are often failing to follow the rule of law, as established by the Administrative Procedures Act and such legislation as the Clean Air and Waters Acts. Enforcement of the rules is increasingly being left to the courts as a result.
Gridlock and hyper-partisanship have made recourse to the more traditional and accessible avenues of action, e.g., internal party dialogue and Congressional debate, less useful. Consequently, the flow of traffic to the courts daily increases. Hardly any Administration action—be it an executive order limiting immigration or an agency’s reticence or refusal to enforce an existing law—goes unchallenged.
I began the Here Comes the (Trump) Judge series because my sense is too little attention is being given to the Administration’s filling of judicial vacancies by the climate and clean energy community.
The primary focus of action alerts and newsletters appears to remain on the usual suspect actions. These include firing science advisors at the Environmental Protection Agency (EPA); failing to require an environmental impact statement before a license is given to mine coal on federal lands; or, proposing program-busting budget cuts at the Department of Energy’s Office of Energy Efficiency and Renewable Energy.
The community, myself included, is quick to respond to the nomination of an individual entirely unqualified to be the chief scientist at the Department of Agriculture (USDA) or the Secretary of Energy’s ham-handed attempt to prop up the coal industry. We are often missing-in-action when the White House attempts to appoint to the federal bench an individual who is ill-equipped or ill-thought and unlikely to leave their prejudices at the courtroom door.
Who is more deserving of resistance the person who may ignore the law be sued; and can be removed or voted out of office or the one who can undo the illegal action, cannot be sued and is nearly impossible to remove from their lifetime appointment?
These should not be either/or questions. Their answers are important and will impact the environmental future of the nation and the planet.
Through the Here Comes the (Trump) Judge series I hope to be able to increase the community’s understanding and familiarity with the nominees the White House is putting forward and with the Senate confirmation process.
Trump may rightly claim he is filling vacancies on the federal bench—including at the Supreme Court (SCOTUS)—at an historic rate. It is one of the few instances when his hyperbolic claims ring true, a record in itself.
In this installment, I will be updating readers on the status of several candidates in the previous series’ articles and reporting on the changing Senate landscape surrounding the on-going confirmation process. Following the update, I offer some comments on the relationship of the judiciary to the legislative and executive branches and the critical importance of constitutional checks and balance to the operation and staying power of the nation.
Finally, I open the discussion on what to look for in a judicial nominee. There is a difference between not agreeing with a candidate’s perspective and his or her donning judicial robes. History has shown that over their lifetime tenures judges and justices tend to shift their views of the Constitution.
Despite a candidate’s personal and political beliefs, the rule of law requires adherence to established procedures and legal precedents. The measure of a nominee is in large part their ability to leave prejudices and politics at the door and to play by the established rules—even as they make new ones.
This is not to say that politics don’t matter. It is to say that:
Readers may find that judging the judges is not the same as assessing candidates for elected office.
It will not be the last time in the series that I will address these issues—so if at the end of this installment if you’re left wanting, you’ll just have to come back for more.
There go some of the nominees
Trump’s rush to nominate has finally begun to raise concerns in the right place. Several of the more influential Senate Republicans recently dug their heels in and effectively opposed several of The Big D’s nominees. It was not a pretty sight.
In what surely ranks as one of the most uncomfortable confirmation hearings experienced by a nominee--EVER—Mathew Petersen was recently excoriated by a member of the Senate Judiciary Committee.
Trump nominated Petersen for a seat on the U.S. District Court for the District of Columbia. The D.C. Circuit is the smallest of the 13 federal circuits, presiding only over Capital City. Because many of the cases brought against federal agencies and officials begin here, it has an outsized influence compared to other federal trial courts.
It is understandable, therefore, that any nominee for a seat on the D.C. District Court bench is likely to garner more attention than other federal trial court candidates. The buzzsaw Petersen ran into was first-term Republican Senator John Kennedy (R-LA).
Kennedy is a long-standing member of the legal community having graduated magna cum laude and Phi Beta Kappa from Vanderbilt University, earned his JD degree from the University of Virginia Law School, where he also was the executive editor of the law review and is an adjunct law professor at Louisiana State University. He is a solid Trump supporter.
Asked in a recent interview for WWL-TV about his opposition to Petersen, Kennedy responded:
Just because you’ve seen ‘My Cousin Vinny’ doesn’t qualify you to be a federal judge…he has no litigation experience….my job on the judiciary committee is to catch him. I would strongly suggest he not give up his day job. (emphasis added)
The now-viral two-minute flensing of Petersen involved Kennedy’s asking the nominee a series of questions the Senator already knew would be answered in the negative. The questions involved legal doctrines many consider something most third-year law students would know, e.g., rules of evidence, and whether Petersen had ever taken a deposition on his own or argued a motion in a state or federal court.
Petersen is not another of Trump’s cabana boys. He graduated magna cum laude with a B.A. in philosophy from Brigham Young University and earned his Juris Doctor in 1999 from the University of Virginia School of Law—the same institution the Senator attended. Petersen too was a member of the Virginia Law Review.
From 2002 to 2005, Petersen served as counsel to the U.S. House of Representatives Committee on House Administration. He was nominated to the Federal Election Commission by President George W. Bush and unanimously confirmed by the United States Senate on June 24, 2008. He served as Commission Chairman in 2010 and 2016.
Petersen’s lack of practice experience was clearly of concern to Kennedy. Of more significant concern to the Senator, is being ignored by the White House when vetting potential nominees.
Petersen is hardly the least qualified of the candidates put forward by the White House; nor is he less experienced in some aspect of the law than other of Trump’s confirmed nominees.[i]
Senator Kennedy has opposed other judicial candidates put forward by Trump, including Gregory Katsas for the U.S. Court of Appeals for the D.C. Circuit. Katsas is a deputy White House counsel who has worked on the Russia probe and helped craft some of Trump’s controversial executive orders.
Then there are:
Kennedy has publicly stated he thought the president of the United States is getting some very, very bad advice. Of his efforts to improve the White House’s vetting process, Kennedy complained: It’s like talking to the wind .
Kennedy is not the only Republican senator having doubts about the Trumpster’s proposed cast of court characters. Mateer and Talley withdrew their names from consideration only after Senator Grassley (R-IA), chair of the Senate Judiciary Committee, publicly suggested to the White House it slow down and re-think its nominee criteria and screening process.
A suggestion not taken to heart it appears. Trump sent a new cete of candidates for Senate consideration shortly after Grassley spoke up. The new slate includes one of particular interest to the clean energy and climate communities.
Joel M. Carson III was nominated for the US Court of Appeals for the 10th Circuit (Denver). Carson is a former partner in one of New Mexico’s most established law firms and General Counsel to one of New Mexico’s largest producers of oil and gas.
According to the website of Carson Ryan, LLC, Carson’s experience includes:
Other of Trump’s tribe of recent judicial nominees include three who were previously put forward by President Obama, one by President G.W. Bush and others with experience as magistrate judges and practicing attorneys.
The speed with which Trump and company are moving to fill judicial vacancies is orders of magnitude faster than they are moving to build out the roster of key ambassadorships and agency executives. The Senate has already set records by its confirmation of 12 appellate court judges.
Given the Administration’s response to Kennedy’s public pillory of Petersen and Grassley’s suggestion to slow the process, it is clear--
The Donald has every intention of continuing apace despite what anyone on the Hill has to say about the quality of his picks.
A delicate balance—why it matters
Federal judges rule over every aspect of our lives including the time at which we are declared human and eligible for Constitutional protections, i.e., Roe v Wade; whether a presidential order violates the U.S. Constitution, i.e., State of Washington and State of Minnesota v. Donald J. Trump, et al.,; or, if a baker can refuse service on the basis of a customer’s sexuality, i.e., Masterpiece Cakeshop Ltd v. Colorado Civil Rights Commission.
Our system of government depends upon the constitutionally established system of checks and balances between the three branches of government. Of the three—executive legislative and judicial—the courts stand furthest from petty partisan politics. They must, in the interest of the nation, maintain that distance. To accomplish this requires holding judges to a higher standard than the polls that pick them.
Let me be blunt here, the apoliticism of judges is an urban myth. One is more likely to be bitten in the bum by an alligator in the New York City sewer system than to find a judge without political leanings. Also of mythical proportions is the notion the courts don’t make policy, they only interpret it. How can the interpretation of a law be devoid of any impact on the policy it is meant to establish or to enforce?
I say this not to condemn the system but to recognize it for what it is. I am convinced our democracy is still standing for at least three basic reasons.
I still stand in awe of our legal system and marvel at its having been designed by a bunch of old, privileged white guys. I’m not sure today’s political leaders of any ilk would be equal to the task.
It is not that I think our judicial system is always just or right; it is not. It does, however, manage to grind on in relative peace even when justice is not well-served, or a decision is found disagreeable by powerful interests.
Disagreeable judicial decisions have rarely been met with armed insurrections or by efforts to disband the courts by either or both the executive and legislative branches; although at times, it appeared as if they might. Here dissent prompts debate, the pursuit of new and amended legislation and the search for additional opportunities to stand before the bar respectfully seeking an alternative outcome.
Our nation has stood for 242 years—not always tall, not always strong—in large part because we the people continue to give our consent to being governed. Seeding the courts with judges ill-qualified or of low character must now be considered the greatest long-term threat we now face, greater even than a changing climate.
My awe of our legal system is matched only by disdain for the hyper-partisanship of today’s politics and disappointment that federal courts have become the primary field upon which environmental protections must now be fought for.
It is, however, what it is. Because it is, there is today no more important battle going on than that over the quality and character of Trump’s nominees to the federal bench.
The continued integrity of federal courts is essential to the protection of the nation’s environment and the preservation and wise use of its natural resources.
Federal judges and justices are given lifetime appointments and cannot easily be removed for bad or disagreeable decisions nor even for odious behavior outside the courtroom. Senators Kennedy and Grassley seem to have finally spoken up, if only in whispers, against a petulant president who values speed and quantity over quality.
Will the three recent exceptions become more the rule in 2018, as new nominees to the federal bench are put forward for confirmation? What makes a good judge, anyway?
Judging the judges—in the grander scheme of things
Three judicial nominees walk into a bar—a conservative, a liberal and one completely unqualified. How can you tell the difference? By looking at the totality of their records and pronouncements.
OK, as riddles go this one is a bit flat—sue me. Judicial qualification, however, is not a laughing matter. A judicial nominee’s past holds significant clues to how they are likely to act in the future.
Justice Hugo Black once said:
Show me the kind of steps a man made in the sand five years ago, and I will show you the kind of steps he is likely to make in the same sand five years hence.
Black is himself an interesting example of the twists and turns of judicial appointments. He was appointed by FDR in 1937, served on SCOTUS for 34 years and is still considered one of the most influential justices ever to serve on the Court.
Black hailed from Alabama and is thought by legal scholars an originalist or textualist. Other originalists on SCOTUS include its newest Associate Justice, Neil Gorsuch, and the man whose shoes he was chosen to fill, Antonin Scalia.
Justice Scalia described his originalist position as follows:
The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.
Not a position I agree with, but one held by many jurists past, present and future. As practiced, it is a perspective that has mixed reasonably with the opinions of others on federal courts.
Descriptive terms like originalist and liberal are far from clean in the sense they describe what side of an issue a judge will always take. As will be discussed in more detail in the next installment of the series, Gorsuch and Scalia hold opposing views on whether to defer to an executive agency’s interpretation of a vague law. Views that have had and will continue to have significant impacts upon federal environmental policies.
Black favored first amendment freedoms and opposed segregation, having voted with the majority in Brown v. Board of Education. However, he opposed the idea that the Constitution accords the right to privacy as he had shown in his dissent in the Griswold case. Had it been left to him he would have confirmed a state’s right to criminalize contraception. Had he been still on the bench in 1973, he would have undoubtedly found against a woman’s right to an abortion.
Black’s opposition to segregation must have been surprising to his Alabama neighbors; he was once a card-carrying member of the KKK. Alabama has produced a series of interesting legal figures, to say the least.
At one end of the spectrum is Justice Black, who in 34 years on the bench defied liberal/conservative labels, rose above his bigotry, garnered the support of probably the most progressive president in history and earned the respect of many legal scholars and practitioners.
At the other end is Roy Moore. An unsuccessful Senate candidate, who believes women should not be allowed to vote; Muslims cannot hold public office because they won’t swear on the Bible; LGBTQ Americans are not entitled to the same Constitutional rights and protections as other citizens; and, contrary to the fundamental principle of the separation of church, holds that Christianity should be declared the nation’s religion. Moore was removed from his position as Chief Justice of the Alabama Supreme Court for refusing to follow a federal court order.
Two Alabaman bigots—what’s the difference between them? Look at the steps in the sand.
Moore has appeared only to harden his extreme positions and exhibited an abject failure to leave his bigotry at the door. Justice Black showed movement of a different kind.
People change. Whereas many of us become more conservative over time, Supreme Court justices appear to become more moderate—Republican appointees more than others. For some, this shift is a blessing, while for others it is a curse.
The Figure below is from an article in FiveThirtyEight written by Oliver Roeder. The bold lines are the results of a simple linear regression for Republican-appointed (red) or Democrat-appointed (blue) justices. The lighter red and blue dots in the Figure are the individual justices making up the cumulative trend line.
Certain justices are historical torchbearers of this liberalizing phenomenon. Justice William Brennan was nominated to the court, as a moderate, by President Dwight D. Eisenhower in 1956. He went on to become the court’s liberal hero…[Justice] Blackmun…significantly altered his positions leftward on the death penalty, federalism and women’s rights.
Today, there is even talk in some circles of disappointment over recent opinions by Chief Justice Roberts. Some conservatives have expressed dismay over his liberalized decisions in cases involving the Affordable Care Act (Obamacare). Like talk of Twain’s death, such statements appear premature.
Roberts, for the most part, maintains his originalist views. Justice Kennedy, on the other hand, has shown a marked drift leftwards and is being encouraged by moderates to remain on the bench despite his age (81) and rumors of his wanting to retire.
With Gorsuch’s confirmation, Trump is one nomination away from shifting the balance of the bench to the right—no matter the slight leftward slide of individual justices over time.
The balance of SCOTUS will undoubtedly play a major part in the 2018 mid-term elections. Whether Trump or Pence is in the Oval Office when the dust settles in November, a Democratic Senate could jam up any new nominee at least until after the 2020 presidential election.
In the next installment, I'll be discussing further how judges and justices with seemingly the same philosophical outlook can and often do arrive at different decisions. Much of the discussion will settle on the Chevron doctrine or deference and other key judicial decisions that are likely to impact what the Administration and the climate and clean energy community might expect in response to any proposed changes to the CPP and the endangerment finding.
 In the name of transparency, I admit I felt bad for Petersen on a personal level; a feeling I do not have for nominees like Mateer and Talley.
Image credit: Screenshot from The Simpsons, Duffless S:4/E6 (http://pixa.club/en/the-simpsons/season-4/epizod-16-duffless)
Joel B. Stronberg
Joel Stronberg, Esq., of The JBS Group is a veteran clean energy policy analyst with over 30 years’ experience, based in Washington, DC.