One of President Obama’s most enduring legacies will be the nominees he selects for lifetime seats on trial courts, the circuit courts of appeal that have the final say in 99 percent of cases, and the Supreme Court.
There are 44 current and 21 announced future federal court vacancies. Retirements, deaths and likely passage of a bill to create badly needed new judgeships will result in many more nominations over the next four years.
The records of potential and pending judicial nominees on constitutional interpretation are a vital consideration, but far from the only one. Lifetime judges must also be competent, fair and independent, and must fairly interpret and apply the statutes, treaties, and judge-made “common law” that are at issue in the vast majority of cases.
In addition, access to court is essential. It includes both constitutional and non-constitutional aspects of standing to sue, and statutory interpretation issues such as the definition of agency action that can be challenged.
As I described in a prior ACS guest blog posting, my review of the records of President Bush’s judicial nominees shows how important it is to ensure that judges do not fall short in one or more respects. These analyses bear out my prior experiences with judges who fail to take certain issues and categories of cases seriously, twist the facts and ignore binding legal precedents, violate their own court rules, are hostile to public interest group access to courts, and unjustifiably value corporate interests above those of ordinary Americans and the environment.
When I began representing Indian tribes in the late 1970s, I first observed judges at all levels who refused to enforce Indian treaties and never really accepted tribal sovereignty and the vital interests that treaties protect. Professor David Getches has described “a fabled unpopularity of Indian cases among [Supreme] Court members.” In The Brethren, Bob Woodward and Scott Armstrong wrote that “Rehnquist had nothing but contempt for Indian cases,” and reacted to an assignment to write by turning “an opinion that was in favor of Indians into an opinion that indicated that in most cases they would lose.”
In the 1980s, an appeals court ensured rejection of almost every claim filed by PATCO air traffic controllers who were fired for allegedly participating in a strike. The court violated its random assignment rule, as two panels of judges decided the first few hundred cases challenging dismissals. When the first court ruling interpreting a particular statutory provision actually overturned a dismissal, the opinion was not published, and was thereby denied any precedential effect. The court rejected without explanation a motion to publish the decision even though conclusory affirmations of dismissals were published that ignored facts and simply cited prior rulings.
Judges vary widely in their understanding of, and willingness to accept, congressional findings on the value of access to courts, an of endangered species and environmental resources.
Questions and comments belittling environmental, access to court, and other concerns are also a feature of many Supreme Court and circuit court oral arguments that I have attended and in which I have argued or assisted. For example, at the end of one of my late 1990s D.C. Circuit oral arguments on the devastating impacts of coal mining, a judge blithely characterized the detailed comprehensive regulatory statute as “all about excess dust.”
In the Massachusetts v. EPA case, four Justices would have interpreted the Constitution to immunize EPA’s refusal to enforce Clean Air Act global warming provisions from any challenge by citizens who would be harmed, and even by states that had already lost land from global warming. The dissent would have created a slanted playing field in which polluters could challenge any global warming rules that might cost them money.
In the Exxon Valdez case the Supreme Court invented a maximum one-to-one ratio of punitive to compensatory damages in admiralty cases in order to overturn as excessive a jury verdict that was a tiny fraction of ExxonMobil’s profits. Even Gov. Sarah Palin condemned that decision.
In sum, judicial nominees must be competent, fair and independent, and have records that show their ability and willingness to understand a range of issues and to interpret fairly and uphold and enforce access to court provisions, statutes, treaties, and common law, as well as the Constitution.