FOR IMMEDIATE RELEASE: September 24, 2002

SCHUMER: IDEOLOGICAL BALANCE ON THE DC CIRCUIT MATTERS

With Senate Judiciary Committee to consider key nominee to DC Circuit later this week, hearing shows how ideological balance on the court is essential to protecting civil rights, workers' rights, the environment

Hearing features Judge Abner Mikva, Judge Fred Fielding, Michael Gottesmon, Christopher Schroeder, Brad Clark, and other legal scholars

If there is one court in the country besides the Supreme Court where ideology plays a key role in influencing verdicts more than any other, it's the DC Circuit. If there's one court in the country besides the Supreme Court whose rulings have a direct impact on the daily lives of Americans more than any other, it's the DC Circuit. But despite the key role that it plays in the US judicial system, it often gets short shrift.

The DC Circuit – often called America's second highest Court – is important because its decisions determine how federal agencies go about doing their jobs. So when it comes to the way federal agencies regulate gas prices, clean air and water, unfair labor practices, campaign finance reform, and a host of other areas, the DC Circuit almost always has the last word.

The hearing being held today by the Senate Judiciary Subcommittee on Administrative Oversight and the Courts, chaired by US Senator Charles Schumer, focuses on what is at stake when considering nominees to the DC Circuit, how their ideological predilections will impact the decisions coming out of the court, and why it is vital for Senators to consider how nominees will impact the delicate ideological balance on the court when deciding how to vote. Schumer issued the following statement:

"I want to thank everyone for joining us for this important hearing on the unique role the DC Circuit plays in our system of justice and the need for ideological balance on this vital court. The DC Circuit is often called 'The Nation's Second Highest Court' and with good reason. More judges have been nominated and confirmed to the Supreme Court from the DC Circuit than from any other court in the land. The DC Circuit is where Presidents look when they need someone to step in and fill an important hole in the lineup.

"It's sort of like the Bullpen Court – having given us Supreme Court Justices Scalia, Thomas, and Ruth Bader Ginsburg. Not to mention Robert Bork, Ken Starr, and my good friend who is here with us today, the notorious Abner Mikva.

"All the other federal appellate courts handle just those cases arising from within its boundaries. So, for example, the Second Circuit, where I'm from, takes cases coming out of New York, Connecticut, and Vermont. The Eleventh Circuit, where Jeff's from, gets cases coming out of Alabama, Georgia, and Florida.

"But the DC Circuit doesn't just take cases brought by residents of Washington, DC. Congress has decided there's value in vesting one court with the power to review certain decisions of administrative agencies. We've given plaintiffs the power to choose the DC Circuit – and in some cases we've forced them to go to the DC Circuit – because we've decided, for better or worse, that when it comes to these administrative decisions one court should decide what the law is for the whole nation.

"When it comes to regulations adopted under the Clear Air Act by the EPA, labor decisions made by the NLRB and rules propounded by OSHA, gas prices regulated by the Federal Energy Regulatory Commission, and many other administrative matters, the decisions are usually made by the judges on the DC Circuit.

"To most, it seems like this is the Alphabet Soup Court, since virtually every case involves an agency with an unintelligible acronym. EPA, NLRA, FCC, SEC, FTC, FERC, and so on and so on. It leads to another set of letters – a long line of zzzzzzz. Even my eyes glaze over and roll back in my head when you read down the list.

"But the letters that comprise this Alphabet Soup are what make our government tick.

"They are the agencies that write and enforce the rules that determine how much "reform" there will be in campaign finance reform. They determine how clean water has to be for it to be safe for our families to drink. They establish the rights workers have when they're negotatiating with corporate powers.

"The DC Circuit is important because its decisions determine how these federal agencies go about doing their jobs. And, in so doing, it directly impacts the daily lives of all Americans more than any other court in the country, with the exception of the Supreme Court.

"But we probably wouldn't be talking about this court today if it weren't for the political maelstrom brewing over a few of the pending nominations to it. So before any of the reporters here get too excited, I want to be clear that the witnesses with us today are not going to discuss Miguel Estrada and John Roberts – those discussions are for another day.

"That said, nominations to this special Circuit merit special scrutiny. Anyone who thinks we should just blindly confirm the President's nominees to this all-important court needs to think again.

"The goal of this hearing is to underscore what is at stake when considering nominees to the DC Circuit, how their ideological predilections will impact the decisions coming out of the court, and why it is vital for Senators to consider how nominees will impact the delicate ideological balance on the court when deciding how to vote.

"Perhaps more than any other court aside from the Supreme Court, the DC Circuit votes break down on ideological lines with amazing frequency. The divide happens in cases with massive national impact. And if anyone thinks this court's docket isn't chockful of cases with national ramifications, they've got another thing coming. Let me give you some examples.

"When it comes to civil rights, the court plays a big role.

"In Hopkins v. Price Waterhouse, the DC Circuit enforced the Civil Rights Act's guarantee of equal treatment in the workplace by remedying blatant sex discrimination in a case where a woman was denied a partnership at Price Waterhouse based on her gender alone.

"When it comes to communications, the court plays a big role. It has exclusive jurisdiction over appeals from FCC decisions. That's a pretty big chunk of law with massive impact on American consumers.
Just a few years ago, the Circuit upheld the constitutionality of the Telecommunications Act of 1996, guaranteeing more competition in the local and long distance marketplaces – which, in turn, guaranteed better and cheaper phone service for all of us.

"Even when it comes to defining our post-9/11 world, the DC Circuit also plays a big role in interpreting and defining our anti-terrorism laws. In the ongoing case of Holy Land Foundation v. Ashcroft, the Circuit will soon be called upon to determine whether a charitable organization is really a charitable organization or a terrorist front whose assets can be frozen by the federal government.

"When it comes to privacy, this court plays a big role. Earlier this year, the court was called upon to assess the FTC's power to protect consumer privacy when it comes to the private personal information credit reporting agencies may make public.

"When it comes to consumers, this court plays a big role. Yesterday's blockbuster decision by a Federal Energy Regulatory Commission that a major gas and oil company deliberately manipulated gas prices in California will undoubtedly end up before the DC Circuit.

"When it comes to the environment, the court plays a big role. When Congress passed the Clean Air Act in 1970, we gave the Environmental Protection Agency the authority to set clean air standards – the power to determine how much smog and pollution is too much.

"In 1997, having reviewed literally thousands of studies, it toughened standards for smog and soot. The decision was to have two primary effects. First, it was going to improve air quality. But, second, it was going to force some businesses to spend more to pollute less. Industry groups appealed the EPA's decision and a majority Republican panel on the DC Circuit reversed the EPA's ruling.

"In doing so, the court relied on an arcane and long-dead concept known as the 'non-delegation doctrine.' It was a striking moment of judicial activism that was pro-business, anti-environment, and highly political. While that decision ultimately was reversed by a unanimous Supreme Court, most other significant decisions of the DC Circuit have been allowed to stand without review. With the Supreme Court taking fewer and fewer cases each year and taking an increasingly ideological bent itself, we can't rely on the Supreme Court to right the DC Circuit's wrongs.

"Through the 1990s, conservative judges had a stranglehold majority on this court. In case after case during the recent Republican domination of this court, the DC Circuit has second-guessed the judgment of federal agencies, striking down fuel economy standards, wetlands protections, and pro-worker rulings by the National Labor Relations Board.

"Now, for the first time in a long time, there is some balance on the DC Circuit: 4 Republican judges and 4 Democrats. Some of us would like to keep balance on this all-important court – not giving either side an ideological edge.

"Of course, if President Clinton's last two moderate nominees to the Circuit, Elena Kagen and Allen Snyder, had been confirmed, we wouldn't be as worried about balance now. Both had impeccable credentials. There were no blue slip problems, no 11th hour nominations (one waited 15 months, the other 18 months), no 'gotcha' incidents, and support for both from prominent conservatives (e.g., Judge Bork supported Snyder's nomination; Professor Michael McConnell supported Kagen's). Nonetheless, the Republican-controlled Judiciary Committee failed to act on their nominations.

"Given the recent revelations of corporate irresponsibility, avarice, and greed, now more than ever we need to ensure that we will have balanced courts to ensure the law is enforced equally against all offenders.

"While politics isn't always the best predictor of how judges will vote, some recent studies of the DC Circuit pretty conclusively prove that ideology plays a big role in how the judges vote. That's part of what we'll hear from our witnesses today.

"Over the course of the last year or so, I've spoken out about my belief that we should have a more open, honest, and legitimate discussion about judicial nominees and the federal bench. My argument has boiled down to this. Ideology matters in the way we vote on some judges because ideology matters in the way some judges vote.

"Instead of playing games, instead of playing 'gotcha' politics – on both sides – we should be honest and say that ideology is what bothers us. I don't like judges who are too far left or too far right – I want judges who will be non-ideological. It's obvious from the erudite comments of our panel that the DC Circuit is a crucial court. But in reading up on the Circuit, I've been almost shocked by how clear it is that ideology drives votes. I'm not saying these judges are being nefarious. But their different worldviews clearly lead them to different conclusions – at least when it comes to certain kinds of cases.

"Let me give you some examples drawn from several studies that have been done over the last few years. There are some pretty striking numbers when you look at environmental cases where industry is challenging pro-environment rulings. (Chart #1)

"Professor Cass Sunstein has a study coming out soon that makes similar findings in so-called 'Chevron' cases, where the Court is charged with upholding agency interpretations of law so long as they are 'reasonable.' You would predict that Republicans would vote to uphold agency actions rarely while Democrats would uphold frequently. And that conclusion is borne out by the data. (Chart #2)

"It's interesting to note that the findings are especially striking when it comes to Democrats – a panel of all Democrats is actually less likely to uphold agency actions than a panel of 2 Ds and 1R. In other words, you need a Democrat to keep the Republicans in check, but when left alone, the Democrats on this court don't run amok. But that's not really the point here. So my question to the panel is this. Do these numbers prove that ideology matters?"

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