Tipping the Scales

President Bush's remarks about Supreme Court appointees during the last presidential debate left many Americans scratching their heads, what with his perplexing reference to the 1857 Dred Scott slavery case (a coded wink to pro-life factions, as it turns out) and some classic Dubya-style language mangling: "[T]he Dred Scott case ... is where judges years ago said that the Constitution allowed slavery because of personal property rights. ... The Constitution of the United States says we're all – you know, it doesn't say that. It doesn't speak to the equality of America."

In a more coherent moment, Bush said that were he to appoint a new justice to the Supreme Court, he would "pick somebody who would not allow their personal opinion to get in the way of the law."

Yet that very day, a report released by the nonprofit Environmental Law Institute suggested otherwise: It appears that quite a number of Bush's judicial appointees may allow their personal opinions to get in the way of the law – or at least that's how it looks to many environmental advocates.

Federal judges appointed by Democratic presidents are at least three times more likely than those appointed by Bush to rule in favor of plaintiffs who sue the federal government for violating certain environmental regulations, the report found. The study focused on cases filed under the National Environmental Policy Act, a cornerstone law signed by Richard Nixon in 1970 that requires federal agencies to evaluate the environmental impact of their policies and programs with written statements and a transparent process open to public input.

NEPA is one of the most frequently invoked tools of environmental litigators: "It's a Swiss Army knife of environmental law," said Jay Austin of ELI, one of the authors of the report. "It's one of the most basic lines of legal inquiry [on the environment]. Any time the federal government is taking action that might have significant environmental implications, NEPA is invoked."

ELI chose to focus on this statute because of the sheer number of NEPA cases that have been brought against federal agencies during the past four years. "We had a critical mass of cases to examine," said Austin, explaining that the larger the number of cases there are to consider, the more statistically significant the findings will be. The report examined 325 judicial rulings handed down between January 2001 – the month Bush assumed office – and June 2004.

"By no means did we expect to see the degree of polarization that party affiliation appears to have on judicial rulings," added Austin. "We were more than a little surprised."

ELI's findings may not come as a surprise, however, to those who have been closely following Bush's hotly contested judicial nominations. "George W. Bush has tried to appoint some of the most conservative judicial nominees in history," said Adam Shah of the Alliance for Justice , a D.C.-based public-interest organization that monitors and investigates judicial nominations. "Ten of the most extreme have been filibustered, but there are plenty of controversial judges that have made their way onto the federal bench."

The president's judicial nominations aren't the only issue in play here, though. The report reveals a pattern of discrepancy between Republican and Democratic rulings that goes beyond Bush's appointees, who constitute 23 percent of active federal judges.

Of the 849 total active federal judges, 201 have been appointed by the current president, and 262 were appointed by former Republican presidents going back to Nixon. In total, 55 percent are Republican appointees. The remaining 45 percent were appointed by Democratic presidents stretching back to Lyndon Johnson. The report shows that federal district judges appointed by a Democratic president ruled in support of pro-environment NEPA cases 60 percent of the time, while GOP-appointed judges ruled in support 28 percent of the time. (The Bush appointees, by comparison, only ruled in favor 17 percent of the time.)