Obama’s Tactics on Greenhouse Gas Regulations Come Into View

DC Circuit logoLast week, Ann wondered why the Obama Administration has withdrawn proposed rules on greenhouse gas emissions from stationary sources, worrying that time might run out of the possibility of getting them written in time for the end of Obama’s second term.  The two reasons proffered — 1) susceptibility to legal attack; and 2) waiting until the Senate confirms EPA-nominee Gina McCarthy — seemed extremely weak, even for a hyper-risk-averse administration such as this one.

Well, now we may have our answer:

President Obama will soon accelerate his efforts to put a lasting imprint on the country’s judiciary by simultaneously nominating three judges to [the U.S. Court of Appeals for the District if Columbia Circuit], a move that is certain to unleash fierce Republican opposition and could rekindle a broader partisan struggle over Senate rules.

It’s no secret that the right-wing radicals currently dominant in the DC Circuit pose a threat to any greenhouse gas regulations.  And Republicans want to keep it that way.  Until last week, President Obama had been the first Chief Executive not to have a judge confirmed to the DC Circuit since the court was created.  To some extent, this was Obama’s own fault, having only nominated two judges when the Court had four vacancies, but the Senate GOP’s unprecedented obstruction may have made it moot in any event.

Now, we see the strategy coming into play.  Senate Republicans’ continuing obstruction and routine filibusters of every nominee, including high-level Cabinet posts, means that Senate Democrats are seriously considering changing the upper house’s rules mid-session — which itself would be unprecedented (in response to unprecedented abuse). Obama will now nominate three people to fill the DC Circuit’s vacancies.  Either the GOP will confirm at least some of them, or the Dems will change the rules and force them through.

On this perspective, the Administration is pulling the greenhouse gas rules to leave the specifics of climate change regulation out of the equation.  It suspects, with reason, that leaving the DC Circuit in the hands of radical reactionaries like David Sentelle, Stephen Williams, Janice Rogers Brown, Raymond Randolph, and Karen Henderson means that the DC Circuit will strike down the rules, so there is little point to move forward in any event.  (And it also suspects with reason that leaving climate change rules subject to the buttery will of Anthony Kennedy is little better).

The New York Times story gets one thing quite wrong, however, stating that by nominating three people at once, the President “will effectively be daring Republicans to find specific ground to filibuster all the nominees.”  This is quite naive.  First, Republicans under Mitch McConnell have never needed a reason to filibuster anybody or anything.  They do it because they can.  Second, Republicans already have a reason for filibustering all three nominees: a few weeks ago, Senator Charles Grassley (R-IA) introduced a bill to strip the DC Circuit of three judgeships and reallocate them elsewhere, arguing (without credible evidence) that the Circuit is underworked and doesn’t need these judges.  (This did not stop Grassley from voting to fill these judgeships under the Bush II Administration).  The inability to feel shame is a great asset in politics, and on this matter, Senate Republicans are very, very strong indeed.

In any event, the whole thing will turn on whether 51 Senate Democrats will go ahead with getting rid of the current filibuster for nominations.  It is a risky proposition for them: once they are in the minority — and that is at least a 50/50 proposition after the 2014 midterms — then they will no longer have the ability to filibuster nominations in the event of a President Cruz.  For executive branch appointments, that is all well and good (and really the only the constitutional option); for judgeships, that is a real risk because of life tenure.  But at some point, something is going to have to be done with a confirmation process that Movement Conservatism has successfully decided to break into pieces.

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8 Replies to “Obama’s Tactics on Greenhouse Gas Regulations Come Into View”

  1. “the right-wing radicals currently dominant in the DC Circuit pose a threat to any greenhouse gas regulations.” Really? Is that why the D.C. Circuit rejected the initial mass of challenges to such regulations and only two judges voted to take the case en banc? (One of the “radicals” you attack was on the original panel and another did not dissent from en banc denial.) Please, Jonathan, get a grip. The D.C. Circuit is more ideologically balanced than it has been for most of the past ten years. During parts of the Bush Administration GOP nominees outnumbered Dems 7-3, and that’s no counting the senior judges who (at the time) were all Republicans. Today the Court is 4-4.

    As for the alleged anti-regulatory agenda, the Bush EPA had a harder time defending its regs than the Obama EPA has — and its rules went down more often from environmentalist than from industry challenge. Just today, in fact, Judges Sentelle and Silberman (both senior) voted with Judge Tatel to reject industry challenges to the EPA’s new lead emission standards.

    As for Grassley’s proposal, there is no backlog on the D.C. Circuit. The amount of time required for the court to decide a case and the number of opinions per active judge D.C. Circuit have both declined over the past decade, and the Senate just (unanimously) confirmed Sri Srinivasan.

    The suggestion in your post that the Administration is making nominations with the specific intent to influence anticipated regulation is also quite disturbing. I’m no fan of the Obama Administration, but I would never suggest that attorneys within the administration would act in such a fashion. Indeed, such an effort to manipulate the composition of a judicial panel would be borderline unethical for any attorney to engage in .It surprises and saddens me both that you would accuse an administration of such conduct and that you appear to endorse it.

    JHA

  2. “the right-wing radicals currently dominant in the DC Circuit pose a threat to any greenhouse gas regulations.” Really? Is that why the D.C. Circuit rejected the initial mass of challenges to such regulations and only two judges voted to take the case en banc? (One of the “radicals” you attack was on the original panel and another did not dissent from en banc denial.) Please, Jonathan, get a grip. The D.C. Circuit is more ideologically balanced than it has been for most of the past ten years. During parts of the Bush Administration GOP nominees outnumbered Dems 7-3, and that’s no counting the senior judges who (at the time) were all Republicans. Today the Court is 4-4.

    As for the alleged anti-regulatory agenda, the Bush EPA had a harder time defending its regs than the Obama EPA has — and its rules went down more often from environmentalist than from industry challenge. Just today, in fact, Judges Sentelle and Silberman (both senior) voted with Judge Tatel to reject industry challenges to the EPA’s new lead emission standards.

    As for Grassley’s proposal, there is no backlog on the D.C. Circuit. The amount of time required for the court to decide a case and the number of opinions per active judge D.C. Circuit have both declined over the past decade, and the Senate just (unanimously) confirmed Sri Srinivasan.

    The suggestion in your post that the Administration is making nominations with the specific intent to influence anticipated regulation is also quite disturbing. I’m no fan of the Obama Administration, but I would never suggest that attorneys within the administration would act in such a fashion. Indeed, such an effort to manipulate the composition of a judicial panel would be borderline unethical for any attorney to engage in .It surprises and saddens me both that you would accuse an administration of such conduct and that you appear to endorse it.

    JHA

  3. “Today, the Court is 4-4”. Of active judges. And the senior judges, including Sentelle, Williams, Ginsburg, Silbermann, and Randolph — all hearing a lot more cases because of GOP obstruction — makes it a very conservative court. Surely you know this; why you selectively chose not to acknowledge it is an exercise left to the reader.

    The Bush Administration had a hard time defending its regs because it was blatantly violating statutes. That goes to the right-wing agenda of the Bush administration, not to the fairness of Stephen Williams.

    As for caseload, you can consult Chief Justice Roberts’ reports about the overwhelming backlogs; the Judicial Conference has recommended 6 new circuit judgeships and 85 new district court judgeships. In any event, none of the DC Circuit’s supposed easy ride meant anything to all these Republican senators when they continually voted to fill DC Circuit slots if George W Bush did the nominating.

    It is hardly surprising that an administration, seeking to write lawful rules to handle major policy problems, is basing its nominating decisions on ensuring that the advocates of the Constitution In Exile do not pervert our system. In any event, since every administration in the history of the country has done this, I find it unremarkable — unless you want to argue that, say, Roberts and Alito were appointed and just so happened to be reactionaries dedicated to upholding a conservative agenda. The Bush people knew that, as they did about all their nominees, and it is willful blindness to suggest otherwise.

    What puzzles me, Jon, is the steadfast unwilling of conservatives to have the courage of their convictions. They hate the New Deal and the Progressive Era. They want to reconstitute the Gilded Age. But instead of admitting it, they insist on dissembling with nonsense like the Grassley bill and filibustering Caitlin Halligan over nothing. Scalia at least is getting more honest about it: he’s a reactionary who thinks that the Voting Rights Act is a racial entitlement and that Brown II was an abomination. I give him credit for that, at least.

  4. “Today, the Court is 4-4”. Of active judges. And the senior judges, including Sentelle, Williams, Ginsburg, Silbermann, and Randolph — all hearing a lot more cases because of GOP obstruction — makes it a very conservative court. Surely you know this; why you selectively chose not to acknowledge it is an exercise left to the reader.

    The Bush Administration had a hard time defending its regs because it was blatantly violating statutes. That goes to the right-wing agenda of the Bush administration, not to the fairness of Stephen Williams.

    As for caseload, you can consult Chief Justice Roberts’ reports about the overwhelming backlogs; the Judicial Conference has recommended 6 new circuit judgeships and 85 new district court judgeships. In any event, none of the DC Circuit’s supposed easy ride meant anything to all these Republican senators when they continually voted to fill DC Circuit slots if George W Bush did the nominating.

    It is hardly surprising that an administration, seeking to write lawful rules to handle major policy problems, is basing its nominating decisions on ensuring that the advocates of the Constitution In Exile do not pervert our system. In any event, since every administration in the history of the country has done this, I find it unremarkable — unless you want to argue that, say, Roberts and Alito were appointed and just so happened to be reactionaries dedicated to upholding a conservative agenda. The Bush people knew that, as they did about all their nominees, and it is willful blindness to suggest otherwise.

    What puzzles me, Jon, is the steadfast unwilling of conservatives to have the courage of their convictions. They hate the New Deal and the Progressive Era. They want to reconstitute the Gilded Age. But instead of admitting it, they insist on dissembling with nonsense like the Grassley bill and filibustering Caitlin Halligan over nothing. Scalia at least is getting more honest about it: he’s a reactionary who thinks that the Voting Rights Act is a racial entitlement and that Brown II was an abomination. I give him credit for that, at least.

  5. Jonathan —

    You need to get your facts right. The senior judges don’t hear more cases because of GOP obstruction. The hear more cases because they choose to. On the D.C. Circuit, senior judges get to decide how much of a caseload they want. Yes most of the seniors are right-leaning, but that’s been true for the past 13 years, even when the number of GOP nominees on the court outnumbered Dems 7-3 (as in 2006).

    Second, the GOP blocked one nominee to the D.C. Circuit. Do you forget the Democratic filibusters of Bush’s nominees to that court? Srinivasan could have been confirmed earlier, but he wasn’t nominated.

    I agree with you there are caseload issues in the federal courts — but not on the D.C. Circuit. There’s no backlog there — the time to opinion has actually declined in the past decade. There’s an urgent need to fill vacant judgeships throughout much of the country, but nearly 3 in 4 vacancies lack nominees.

    My point about your post was not that the Administration wants to influence the courts, but that they would do it with an eye toward affecting the outcome in a specific case. That’s what would be unusual, not that they generally want to see judges confirmed with a given philosophy.

    Finally, your rhetoric about the Gilded Age is fun, but it’s a bit unhinged. It’s like the folks that worry Kagan and Sotomayor are going to usher in a socialist age. Please.

  6. Jonathan —

    You need to get your facts right. The senior judges don’t hear more cases because of GOP obstruction. The hear more cases because they choose to. On the D.C. Circuit, senior judges get to decide how much of a caseload they want. Yes most of the seniors are right-leaning, but that’s been true for the past 13 years, even when the number of GOP nominees on the court outnumbered Dems 7-3 (as in 2006).

    Second, the GOP blocked one nominee to the D.C. Circuit. Do you forget the Democratic filibusters of Bush’s nominees to that court? Srinivasan could have been confirmed earlier, but he wasn’t nominated.

    I agree with you there are caseload issues in the federal courts — but not on the D.C. Circuit. There’s no backlog there — the time to opinion has actually declined in the past decade. There’s an urgent need to fill vacant judgeships throughout much of the country, but nearly 3 in 4 vacancies lack nominees.

    My point about your post was not that the Administration wants to influence the courts, but that they would do it with an eye toward affecting the outcome in a specific case. That’s what would be unusual, not that they generally want to see judges confirmed with a given philosophy.

    Finally, your rhetoric about the Gilded Age is fun, but it’s a bit unhinged. It’s like the folks that worry Kagan and Sotomayor are going to usher in a socialist age. Please.

  7. Jon, this is about arithmetic, not DC Circuit rules. If you have 14 judges, each one will hear more cases than 17 judges.

    In any event, it’s hardly unhinged to say that the GOP wants to bring back the Gilded Age. Paul Ryan is now the leading economic “thinker” in the Party, and he sees Ayn Rand as his patron saint. Anyone who can’t see that isn’t watching. Even the judges admit their goals:

    [We see] “an ugly truth: America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.

    “First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to “adopt whatever economic policy may reasonably be deemed to promote public welfare.” Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review. Finally, the Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the “democratic process.” “The Constitution,” the Court said, “presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” Id.

    “Thus the Supreme Court decided economic liberty was not a fundamental constitutional right, and decreed economic legislation must be upheld against an equal protection challenge “if there is any reasonably conceivable state of facts that could provide a rational basis” for it…

    “This standard is particularly troubling in light of the pessimistic view of human nature that animated the Framing of the Constitution—a worldview that the American polity and its political handmaidens have, unfortunately, shown to be largely justified….

    “The hope of correction at the ballot box is purely illusory….In an earlier century, H.L. Mencken offered a blunt assessment of that option: “[G]overnment is a broker in pillage, and every election is a sort of advance auction sale of stolen goods.” On Politics: A Carnival of Buncombe 331 (1996). And, as the Hettingas can attest, it’s no good hoping the process will heal itself. Civil society, “once it grows addicted to redistribution, changes its character and comes to require the state to ‘feed its habit.’ ” Anthony De Jasay, The State 226 (1998). The difficulty of assessing net benefits and burdens makes the idea of public choice oxymoronic. See id. at 248. Rational basis review means property is at the mercy of the pillagers. The constitutional guarantee of liberty deserves more respect—a lot more.”

    Hettinga v. United States, 671 F.3d 471 (D.C. Cir. 2012)(Brown and Sentelle, JJ., concurring).

    There is something that is unhinged here; and it isn’t me.

  8. Jon, this is about arithmetic, not DC Circuit rules. If you have 14 judges, each one will hear more cases than 17 judges.

    In any event, it’s hardly unhinged to say that the GOP wants to bring back the Gilded Age. Paul Ryan is now the leading economic “thinker” in the Party, and he sees Ayn Rand as his patron saint. Anyone who can’t see that isn’t watching. Even the judges admit their goals:

    [We see] “an ugly truth: America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.

    “First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to “adopt whatever economic policy may reasonably be deemed to promote public welfare.” Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review. Finally, the Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the “democratic process.” “The Constitution,” the Court said, “presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” Id.

    “Thus the Supreme Court decided economic liberty was not a fundamental constitutional right, and decreed economic legislation must be upheld against an equal protection challenge “if there is any reasonably conceivable state of facts that could provide a rational basis” for it…

    “This standard is particularly troubling in light of the pessimistic view of human nature that animated the Framing of the Constitution—a worldview that the American polity and its political handmaidens have, unfortunately, shown to be largely justified….

    “The hope of correction at the ballot box is purely illusory….In an earlier century, H.L. Mencken offered a blunt assessment of that option: “[G]overnment is a broker in pillage, and every election is a sort of advance auction sale of stolen goods.” On Politics: A Carnival of Buncombe 331 (1996). And, as the Hettingas can attest, it’s no good hoping the process will heal itself. Civil society, “once it grows addicted to redistribution, changes its character and comes to require the state to ‘feed its habit.’ ” Anthony De Jasay, The State 226 (1998). The difficulty of assessing net benefits and burdens makes the idea of public choice oxymoronic. See id. at 248. Rational basis review means property is at the mercy of the pillagers. The constitutional guarantee of liberty deserves more respect—a lot more.”

    Hettinga v. United States, 671 F.3d 471 (D.C. Cir. 2012)(Brown and Sentelle, JJ., concurring).

    There is something that is unhinged here; and it isn’t me.

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Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic – Land Use, the Environment and Loc…

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