Courting Disaster

By Glenn Scherer, Grist.org. Posted January 24, 2005.

William G. Myers III is George W. Bush's choice for a lifetime position on the U.S. 9th Circuit Court of Appeals. That court's jurisdiction covers three-quarters of all federal lands, in nine Western states where contentious battles rage over energy, mining, timber and grazing.

Unlike most judicial nominees, Myers has never been a judge. Instead, his qualifications include decades as a paid lobbyist and lawyer to the coal and cattle industries. In his recent position as the Bush Interior Department's chief attorney, Myers tried to give away valuable federal lands to a mining company and imperiled Native American sacred sites. "His nomination is the epitome of the anti-environmental tilt of so many of President Bush's nominees," says Sen. Patrick Leahy (D-Vt.).

Democrats aggressively blocked Myers' appointment with a filibuster in 2004. So when his nomination lapsed at the end of this past congressional session, many legal experts assumed it was dead, along with the nominations of nine other judicial candidates that were blocked by Senate Democrats for their extremist ideology, industry ties and/or ethical problems. But on Dec. 23, while Americans were distracted by the holidays, the president gave his corporate backers (especially those in the energy and mining industries) a Christmas present: He announced his intent to renominate seven of the filibustered candidates, including Myers. (The other three were given the option of being renominated, but withdrew themselves from consideration.)

"Renomination on this scope and scale of so many judges who the Senate has refused to confirm has never happened before," says Glenn Sugameli, senior legislative counsel for Earthjustice, a nonprofit public-interest law firm. Noting that Congress has already confirmed 204 of Bush's appointees, Sugameli asserts, "President Bush is trying to convert the Senate into a rubber stamp that will confirm 100 percent of his judicial nominees. That is what is really at stake here."

Also at stake is the future of the U.S. environment. While much attention over natural-resource protection is focused on the executive and legislative branches of government, most decisive battles for the environment are won or lost in the judicial branch. And with Supreme Court Chief Justice William H. Rehnquist fighting cancer, and three other justices in their 70s or 80s, the president may have the chance to fill up to four Supreme Court vacancies with right-leaning anti-environmentalists.

But as important as those nominations are, Bush's nominations to the lower federal courts are as crucial to the environment. While the Supreme Court takes on less than 100 cases per year, the circuit (or appellate) courts hear more than 40,000 appeals annually and set most legal precedents that become the law of the land.

There are currently 37 federal judicial openings, with 15 of those on the circuit courts of appeal. For the environment, some of the key open judgeships include three vacancies on the District of Columbia Circuit (the court that hears most environmental cases involving executive-branch regulatory agencies such as the Interior Department, the U.S. EPA, and the Army Corps of Engineers), as well as seven vacancies on the West's 9th Circuit.

"In many ways, the courts are more important than either Congress or the executive-branch agencies," says Patrick Parenteau, professor of environmental law and director of the Environmental and Natural Resources Law Clinic at the Vermont Law School. "Congress may enact the laws, but it does so in very broad, sweeping terms. It is the courts that interpret, apply, and enforce the statutes." Without the courts, such landmark legislation as the Clean Air and Water Acts could have been stillborn, he says. "If you don't have courts and judges willing to take a strong stand, those laws never take effect on the ground. They don't change how things are done. The courts give teeth to environmental laws."

President Bush, however, seems intent on extracting those teeth. And one of his key strategies for doing so is to pack the federal courts with right-wing extremists. The likely result could be one of the most heated Senate battles over judicial nominations ever, with some experts predicting the struggle will be a defining moment of Bush's second term.

Taking Care of Business

Perhaps the most disturbing trend in Bush's judicial appointees is their increasingly common links to industry. More than a third of Bush appointments to appellate courts and the U.S. Court of Federal Claims during his first term – 21 of 59 nominations since 2001 – have worked as lawyers or lobbyists for the oil, gas, and energy industries, according to a new investigation by the Center for Investigative Reporting. Three of these energy industry-linked Bush nominations have been made to the critically important 9th Circuit (with one confirmed so far), another nominated but not confirmed to the D.C. Circuit Court, and four confirmed to the little-known Court of Federal Claims, which deals with "takings" property claims made by developers and industry against the government. "The placement of the nominees suggests an administration strategy of nominating corporate-friendly judges in circuits where they will make the greatest impact," notes CIR. "In many cases, these same corporations and industries are also major campaign contributors to the Bush administration and the Republican Party."

Glenn Scherer is an author and freelance journalist whose stories have recently appeared on Salon.com, TomPaine.com, and other publications. He is former editor of Blue Ridge Press, a syndicated environmental commentary service in the Southeast.

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