Bush Judges Again Show Why the DC Circuit Matters

Last week, the U.S. Court of Appeals for the DC Circuit Court issued two sharply divided opinions, both authored by ideological George W. Bush nominees, that show just how important it is to fill the DC Circuit's three empty judgeships with jurists who will put the law over political ideology.

Last Friday, a three-judge panel of the DC Circuit Court issued a divided 2-1 opinion striking down FDA rules requiring graphic warning images on cigarette packages. The majority opinion was written by one of George W. Bush's most notorious nominees, Janice Rogers Brown, who made headlines this spring when she wrote a widely condemned concurring opinion defending the ideology of the discredited Lochner era. The FDA had ordered cigarette packages to complement their textual health warnings with graphic images showing the actual consequences of using the product as intended. Judge Brown jumped through all sorts of hoops to strike the images down as violating Big Tobacco's First Amendment rights. For instance, she dismisses the federal government's stated interest in communicating factually accurate health information to consumers, saying that isn't really its goal. That lets her ignore the obvious fact that the images clearly accomplish that goal.

Two other Bush nominees – Brett Kavanaugh and Thomas Griffith – are responsible for a 2-1 anti-environmental decision earlier in the week. In that case, they granted the wishes of major corporate polluters and struck down the EPA's rules on air pollution that crosses state lines. As the Pittsburgh Post-Gazette noted:

The court ruling, decided by a 2-1 majority, was as surprising as it was dismaying. In her vigorous, even angry, dissent, Judge Judith W. Rogers showed why the decision came as a shock to some:

"To vacate the Transport Rule, the court disregards limits Congress placed on its jurisdiction, the plain text of the Clean Air Act ... and this court's settled precedent interpreting the same statutory provisions at issue today. Any one of these obstacles should have given the court pause; none did.

"The result is an unsettling of the consistent precedent of this court strictly enforcing jurisdictional limits, a redesign of Congress's vision of cooperative federalism between the States and the federal government in implementing the [Clean Air Act] based on the court's own notions of absurdity and logic that are unsupported by a factual record, and a trampling on this court's precedent on which the [EPA] was entitled to rely in developing the Transport Rule ... ."

The Virginian-Pilot was equally disgusted:

To provide some idea of how poorly reasoned the resulting decision was, the judges on the D.C. panel also bought the argument that the EPA should have given states an opportunity to come up with their own plans for downstream pollution.

That's a laughable misunderstanding both of the nature of pollution and of interstate negotiations. Until the EPA stepped in forcefully and under a court's order, efforts to manage water pollution that flows into the Chesapeake Bay floundered for nearly three decades, the result of obstruction and reluctance by a handful of states. The EPA air pollution rules covered more than half the country.

Of the 11 judgeships on the DC Circuit, three are currently empty. Last year, Senate Republicans – eager for more judges like Brown, Kavanaugh, and Griffith – filibustered President Obama's nomination of Caitlin Halligan to the seat once held by now-Chief Justice John Roberts. He renominated her this year, but Republicans have not shown any lessening of their obstruction. President Obama has also nominated Sri Srinivasan to one of the other DC Circuit vacancies.

Decisions like those we saw last week show how important it is to have highly qualified, non-ideological judges on the DC Circuit.

PFAW