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Public Radio's Environmental News Magazine (follow us on Google News)

Judicial Nominees

Air Date: Week of

Senate Democrats are headed for a showdown over President Bush's picks for the federal courts. What's at stake for the environment? As Living on Earth's Jeff Young reports, a lot.


CURWOOD: From the Jennifer and Ted Stanley Studios in Somerville, Massachusetts, this is Living on Earth. I'm Steve Curwood. A showdown is looming over some of the men and women President Bush wants to become federal judges. The president has once again asked the Senate to confirm the few nominees Democrats previously rejected as lacking impartiality, partly because of their views on key aspects of environmental law. A vote on the first of these controversial nominees is expected soon and some legal scholars and activists on both sides of the argument agree on at least one thing. If the president gets his way they say, he could have a profound and lasting impact on how the courts decide environmental cases. Living on Earth's Jeff Young reports.

COURT OFFICIAL: So, with that brief background, let me ask you to stand Mr. Myers for the oath. Do you, William Myers, solemnly swear that the …

YOUNG: William Myers was the first of President Bush's blocked nominees to return to the Senate's Judiciary committee. And, New York Democrat Charles Schumer's reaction shows Myers is in for another tough fight.

SCHUMER: When the president sends us a radical and regressive nominee, one so far out of the mainstream he can't even see the shoreline, we as senators have no choice but to return to sender once, twice or ten times if need be.

YOUNG: Bush selected Myers for the Pacific West's Ninth Circuit Court, which gets major environmental cases about ranching and mining. Schumer notes that Myers spent most of his career as a lobbyist and lawyer for the ranching and mining industries.

SCHUMER: It was you who compared the federal government's management of public lands to quote 'the tyrannical actions of King George over the American colonies.' You've called environmental laws outright top down coercion. Your record screams passionate activist; it doesn't so much as whisper impartial judge.

YOUNG: Myers says he wrote and said those things when he worked for miners and ranchers. As a judge, he would leave that thinking behind.

MYERS: It is the paramount responsibility of a judge to dispassionately review the law without regard to political persuasion or public opinion--to do anything other than that would be a complete dereliction of duty.

YOUNG: On this confirmation vote Myers will have help from one of Washington's biggest business lobbies, the National Association of Manufacturers. NAM President John Engler, the former Michigan governor, is leading a campaign to support the president's nominees and make life tough for any Democrat who gets in the way.

ENGLER: I think that people oppose some of these judges at their peril and our goal is to make it perilous for them.

YOUNG: The manufacturers have never before lobbied for judicial nominees. Engler says it's time they did.

ENGLER: There's no question that there are laws that have been passed that business doesn't like. We can live with that, we can fight to change those. What we can't live with are judges imposing their own view of what the law is.

YOUNG: Engler says the president's picks for the bench will do as Myers promises, make decisions based on law alone. But, a recent study suggests many judges find it hard to shed politics when they put on the robes. The non-partisan Environmental Law Institute looked at how federal judges appointed by Republicans and Democrats decided some environmental cases. Judges appointed by Republicans were far less likely to rule in favor of environmental plaintiffs. And, judges appointed by President Bush have ruled in environmentalists' favor only four times in two dozen cases. The president's critics say that happens because he picks his judges from business and industry. Reporter Dan Noyes of the Center for Investigative Reporting looked into that in an online report called Courting Influence.

NOYES: We determined 21 out of 59 of the candidates we looked at had substantial corporate connections and then also a substantial number of those corporations were linked to energy and mining interests.

YOUNG: The law calls for a federal judge to sit out cases involving a former client. But, others say the real concern is not where the nominees worked, but the judicial philosophy that drives that work.

FEINMAN: The ideological orientation here is what's most important.

YOUNG: That's Jay Feinman, professor at the Rutgers School of law and author of the new book, "Un-Making Law."

FEINMAN: What we worry about is not that someone was a former lawyer or lobbyist for the mining industry and therefore they will favor mining companies in their decisions. But, they have a general ideology that business ought to be able to do its business and government should get out of the way.

YOUNG: That sounds just fine to David Stirling, a former California lawmaker and judge now with the Pacific Legal Foundation, a law firm that's worked since the 70's to expand private property rights.

STIRLING: We feel that is the view all members of the court ought to have. That they ought to be protecting individual and economic freedoms as compared to advancing the government's agenda.

YOUNG: Let's say a highway is going through your yard. The Fifth Amendment says the government has to pay you to take that property. Stirling and the Pacific Legal Foundation say when regulations limit use of property, it's the same as taking it and the government should pay. It's a hugely controversial interpretation of the law but one Stirling says many Bush's nominees share.

STIRLING: The judges that this president has appointed are those that seem to have a view relative to property rights and land use that is consistent with what Pacific Legal Foundation believes is the proper reading of the founding documents of this country.

YOUNG: And, if they were to win spots on the courts most important to environmental issues, Stirling says those few judges would have a big impact on laws like the endangered species act.

STIRLING: What will happen is that the government will not impose those regulations as severely as it has in the past and that will bring about a balance. And, it will make the government to make the members of the Congress, it will make the bureaucracy much more careful in protecting individual and economic freedoms as well as the species.

YOUNG: Stirling says that would restore a healthy balance. Law Professor Jay Feinman says it would bring a disturbing tilt to the right.

FEINMAN: What we see here really is radical, not conservative, in introducing new ideas in the law by making the government pay every time it requires a farmer to protect an endangered species' habitat or enforce some other environmental regulation. And, since we're running massive budget deficits and we're moving more in the direction of cutting taxes, the government is going to be unable to do that. So, it simply is going to have to stop regulating altogether. And, all of the gains we've seen since Earth Day in 1970 could come to an end.

MYERS: William Myers and other Bush nominees await action on the Senate floor where Democrats indicate they will again use the filibuster to block them. Republicans warn that they might change Senate rules to remove the filibuster from judicial votes. A change so dramatic, it's called the nuclear option. It could bring the Senate to a standstill. For Living on Earth, I'm Jeff Young in Washington.



Courting Influence

Pacific Legal Foundation

Defenders of Property Rights

Earthjustice on Judges


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