Circuit Breaker

As early as this week, the full Senate may vote on the nomination of the conservative lawyer Miguel Estrada to the U.S. Court of Appeals for the District of Columbia Circuit. Estrada's nomination squeaked out of the Senate Judiciary Committee by a 10-9 party line vote: no Democrat supported it, and now liberal activist groups are calling for a filibuster. News coverage has frequently emphasized that Estrada has been appointed to the nation's "second most important court," but has rarely explained what this actually means, or why the Bush administration's desire to pack the DC Circuit with conservative judges is so troubling. From our upcoming March issue, Chris Mooney reports on this crucial but often neglected court:

Conservatives are on the verge of controlling the second most powerful court in the United States. That's the U.S. Court of Appeals for the District of Columbia Circuit, which has sent more judges -- Ruth Bader Ginsburg, Antonin Scalia and Clarence Thomas -- than any other to the current U.S. Supreme Court. Because of its critical jurisdiction over federal regulatory matters, dominion of the court under the appointees of President George W. Bush is a uniquely unpleasant prospect for environmental groups, labor and other liberal constituencies. In fact, absent a new Supreme Court nomination, the composition of the D.C. Circuit underscores, more than any single issue other than abortion, the critical importance of balance on the federal judiciary.

The court's unique role is, in part, a simple function of geography. It is located right at the heart of the federal regulatory state, in the E. Barrett Prettyman Courthouse at the foot of Capitol Hill. Along with its central duty of resolving disputes over the separation of powers, Congress has given the D.C. Circuit exclusive jurisdiction over challenges to numerous federal agency decisions, including Federal Communication Commission orders, national Environmental Protection Agency rulings issued under the Clean Air Act and regulations put forth under several other key environmental provisions, including the Safe Drinking Water Act. Moreover, because numerous federal laws allow regulatory cases to be appealed either to a local circuit court or to the D.C. Circuit, the court hears many challenges to decisions by the National Labor Relations Board, cases involving the Occupational Safety and Health Administration, and much else.

Matters of administrative law can be rather arcane and not very scintillating. But because the Supreme Court only reviews a tiny fraction of cases on appeal from the 13 federal circuit courts and 50 state supreme courts, the fact is that the D.C. Circuit usually has the final word on what federal agencies can and can't regulate. At a Senate hearing on the D.C. Circuit last September, Duke University law professor Christopher Schroeder observed that in 2001, the Supreme Court issued opinions in just three appeals from the D.C. Circuit. In the same year, the D.C. Circuit heard 480 cases concerning administrative agency actions. No wonder Sen. Charles Schumer (D-N.Y.) has called it "the court of first resort for corporations that wanted to get relief from government actions."

Conservatives aspiring to limit federal power have targeted the D.C. Circuit at least since the Reagan administration, when the court developed a strongly right-wing slant due to successive presidential appointments. During the Clinton years, the court become somewhat more moderate because of retirements and new appointments, but near the end of Bill Clinton's second term, Republicans on the Senate Committee on the Judiciary blocked two of his D.C. Circuit nominees, Elena Kagan and Allen Snyder, until President Bush took office. As of this writing, only eight of the D.C. Circuit's 12 seats are filled, but if Bush's current nominees -- Washington lawyers Miguel Estrada and John Roberts -- win confirmation, the D.C. Circuit will have six Republican appointees and four Democratic ones. Bush reportedly plans to nominate judges for the court's 11th and 12th seats later this year, and, if he's successful, could shape the court's composition and jurisprudence for a generation.

Indeed, despite the appearance of a 4-to-4 split, even the current court tilts noticeably to the right. For one thing, two Reagan-appointed judges, Laurence Silberman and Stephen Williams, still hear some cases in their capacity as senior judges. For another, court watchers note that in the aggregate, the D.C. Circuit's Democratic-appointed judges -- Harry Edwards, Merrick Garland, Judith Rogers and David Tatel -- simply aren't as liberal as the Republican-appointed ones -- Douglas Ginsburg, Karen Henderson, A. Raymond Randolph and David Sentelle -- are conservative. "I think you'd describe it as a moderate-to-conservative court," says Georgetown University law professor David Vladeck, who first argued before the D.C. Circuit in the 1970s. "Yes, there are some members who are liberal. But I don't think they hold sway."

And when the D.C. Circuit has swung to the right, it has sometimes swung far to the right. The classic example is the 1999 American Trucking Associations, Inc. v. EPA case, in which an ideologically divided 2-to-1 panel voted to roll back recently promulgated Clinton administration Clean Air Act standards covering smog and soot. These were regulations that EPA Administrator Carol Browner had called "the most significant step we've taken in a generation to protect the American people . . . from the health hazards of air pollution." The majority decision was based on a defunct legal theory cherished in conservative Federalist Society circles known as the "non-delegation doctrine." In brief, the doctrine holds that Congress cannot delegate its legislative power to regulatory agencies; therefore, according to the court majority, the EPA's air-pollution standards constituted an unconstitutional aggrandizement of its powers. The decision was so extreme in its implications for federal regulatory power that it was reversed unanimously by the Supreme Court (in an opinion written by Justice Scalia).

According to Doug Kendall of the Community Rights Counsel, cases such as American Trucking have awakened the environmental community to the fact that in the current political climate, the federal courts pose the single greatest threat to environmental protection. Most controversial environmental regulations, after all, end up getting challenged in federal court and heard on appeal -- and the appellate court is almost always the D.C. Circuit (which reviews, along with EPA cases, a number of Department of the Interior and other federal environmental matters). Even though the radical ruling in American Trucking was overturned, D.C. Circuit decisions in other environmental areas -- overruling wetlands protections, for example -- have been allowed to stand without review.

And the environment is just one area where the D.C. Circuit reigns supreme. Testifying last fall before a hearing on the D.C. Circuit called by Senator Schumer, Georgetown law professor Michael Gottesman noted that in recent years, the court has shown itself to be "all too happy to substitute its judgment for that of the [National Labor Relations Board], and in a manner that undermines the rights of workers and unions." Similar trends can be observed in civil-rights protections and other areas.

Current Senate Judiciary Committee Chairman Orrin Hatch (R-Utah) and his supporters object to any focus on the ideology of judges appointed to serve on the D.C. Circuit, of course. And last year their arguments were bolstered in The New York Times Magazine by Jeffrey Rosen, who objected to the increasing tendency among activist groups to treat lower court nominees, whose chief duty is to apply precedent, as if they were Supreme Court nominees. Yet over the years, several empirical studies published in law journals have reached the inescapable conclusion that political factors contribute to the D.C. Circuit's actions.

The best-known study is a 1997 article published in the Virginia Law Review by the current dean of the New York University School of Law, Richard Revesz. Revesz found that from 1987 to 1994, the probability that an EPA regulation would be reversed by the D.C. Circuit when challenged by industry varied dramatically according to the political composition of the panel that heard the case. With a panel composed of two Democratic appointees and one Republican appointee, the EPA was reversed between 2 percent and13 percent of the time. With a two-Republican and one-Democrat panel, the figure jumped to between 54 percent and 89 percent.

In response to Revesz, the Virginia Law Review published a lengthy rebuttal from then-D.C. Circuit Chief Judge Harry Edwards, a Democratic appointee. Edwards objected stridently to the analysis and argued that if panel composition affected court rulings, it simply indicated that collegiality was "alive and well" at the D.C. Circuit. He also noted that there had been dissents in "fewer than 3 percent of all dispositions" by the court between 1995 and 1997, a figure now widely cited by those who oppose focusing on the ideological balance of the D.C. Circuit. Yet only a very crude view of the role of ideology in judicial decision making is defeated by Edwards' analysis. Both sides admit that collegiality is a critical factor in determining how well a court functions, especially in the case of one such as the D.C. Circuit, which has a relatively small number of appointees. A decade and a half ago the court was notoriously polarized; The New York Times even reported that Judge Laurence Silberman at one point threatened to assault Judge Abner Mikva.

Things have calmed down considerably since then, and the eight judges of the D.C. Circuit have developed a respectful and productive working relationship. (They're "behaving like grownups," as Vladeck put it.) Most of the time the D.C. Circuit's judges do indeed reach unanimous rulings, yet for a small minority of cases, political differences inevitably matter -- and would matter more if the court were further skewed toward either end of the political spectrum. As Patricia Wald, who served as the D.C. Circuit's chief judge for several years and now works for the Open Society Institute in Washington, puts it, "My view is that the important cases -- by important I mean high visibility, the cases that you would expect to find everybody disputing -- are more likely to reflect dissent."

Certainly it would be excessive to show nominees to the D.C. Circuit the same level of scrutiny as appointees to the Supreme Court. And crude ideological litmus tests -- as opposed to sophisticated assessments of nominees' judicial temperament and willingness to apply precedent -- are an insult to the integrity of the federal judiciary. Nevertheless, given the importance of the D.C. Circuit, those appointed to the court should, at the very least, receive more attention than judges named to other federal appellate courts. As Sen. Schumer has put it, "Just as the nominees to the Supreme Court are subject to higher scrutiny, nominees to this unique and powerful court merit close and careful review."

Chris Mooney is a contributing writer for the Prospect.

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