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The Planet
A Right Turn for the Law

New Federalist judicial nominees spell trouble for the environment

By Glen Hooks
Regional Conservation Organizer, Arkansas

Why should you care who presides over our federal courts? When it comes right down to it, do federal courts make any difference in our lives at all? The answer is no—unless, of course, you care about the environment, civil rights, reproductive freedom, workers’ rights, women’s rights, labor and employment law, or civil liberties.

Most environmental laws are enforced by the federal courts. If you go to court to enforce the Clean Air Act or the Clean Water Act, your fate will be determined by a federal judge.

Federal judges—from the lower federal courts to the U.S, Supreme Court—are appointed for lifetime terms.

Many of the Bush Administration’s nominees subscribe to extreme interpretations of the Constitution, notably "new federalism," which elevates state sovereignty over federal authority, and threatens Congress’ ability to protect the environment.

To put this into perspective, let’s imagine a situation where your local Sierra Club group identified a factory that was committing gross violations of the Clean Air Act. Imagine also that the Club’s subsequent lawsuit was assigned to a judge who, in his days as a lawyer, had published numerous writings in which he disputed the federal government’s power to enforce environmental law. Would you expect this judge to be impartial and unbiased?

The answer is as obvious as it is chilling. Adherents of new federalism would take the federal enforcement cop off the beat, allowing states to disregard federal environmental laws at will. For example, William Myers, III, former lawyer and lobbyist for the mining and beef industries, and recent Bush nominee to the 9th U.S. Circuit Court of Appeals, compared federal environmental regulation to the "tyrannical" rule of King George III over the American colonies. Myers, who lacks any judicial experience, ridiculed the California Desert Protection Act as "an act of legislative hubris" and likened the government’s reintroduction of wolves to Yellowstone to the forced quartering of British troops in American colonial homes. The 9th Circuit—one level below the United States Supreme Court—covers many Western states and handles a number of hotly contested environmental issues. Is Myers likely to shed his long-held beliefs and become impartial simply because he dons the black robe of the judiciary?

We don’t get to vote for federal judges. The president nominates a candidate, and the Senate votes whether or not to confirm the nominee. It’s at the confirmation process where your voice can make an enormous difference. Federal judges confirmed in 2003 may very well still be making critical legal decisions in the year 2040.

Take Action

Contact your senators and tell them to be sure that judicial nominees have a record of upholding federal environmental laws—not allowing a rollback of 30 years of progress in the name of states’ rights—before voting to confirm. Write to: Your Senator, U.S. Senate, Washington, DC 20510. Or call the capitol switchboard at (202) 224-3121.

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