Most recently, it's played by federal judges in Wyoming and Washington, D.C. — one ordering the National Park Service to ban snowmobiles in Yellowstone Park, and the other ordering the Park Service to allow snowmobiles.
In another flip-flop, different federal judges ordered the Army Corps of Engineers to run Missouri River dams to cause high river flows for barge traffic, and low flows for endangered species.
One federal judge in Idaho tosses out the roadless forest initiative, which protected 56 million acres, then the appeals court in San Francisco reinstalls the protection. Meanwhile, another federal judge in Wyoming (the one who likes snowmobiles) tosses out the forest protection initiative again, a ruling that is now in the appeals court in Denver, where it may become yet another flip-flop.
We can retire once and for all the idealistic notion that the federal courts are a sanctuary from sweaty politics. Just as another allegedly sacred institution costumed in robes — the Catholic Church — has been exposed as human, the federal courts are also being exposed.
It's important for Westerners, because federal judges have more influence here than in any other region. Judges decide countless issues related to all the federal land — rulings that affect not only the environment but also local economies, recreation, the trademark scenery and wildlife, the whole feel of the region.
Even as they try to rule based on the intricacies of law and facts, judges are bound to show personal leanings, based on their own experiences and beliefs.
Hence a native Wyoming judge, Clarence Brimmer, who is unabashedly rooted in a culture of oil and gas drilling and ranching, views snowmobiles in the national park as acceptable. No surprise; Judge Brimmer has a long pattern of rulings against wilderness protection and for cattle grazing. Meanwhile, his D.C. counterpart, Judge Emmet Sullivan, has a different pattern — not only ruling against snowmobiles, but also ordering Vice President Dick Cheney to cough up records of his energy task force, and ruling against a nuclear-waste dump in California.
Judges' leanings show up even in the most basic breakdown, by political party. In environmental cases, judges appointed by Republican presidents are more likely to rule in favor of industry, compared to judges appointed by Democratic presidents — a general conclusion of statistical studies. In the snowmobile example, Judge Brimmer was appointed by Republican President Gerald Ford. Judge Sullivan was appointed to his current job by Democratic President Bill Clinton.
In all kinds of cases, judges appointed by Republican presidents tend to want fewer laws and regulations, while invoking Christian religion to circumscribe personal freedoms.
Today’s courts are already shaped by right-wing influence. That wing has held the presidency for 16 of the last 24 years, with Ronald Reagan, George H.W. Bush and now George W. Bush. As a result, 57 percent of all federal judges holding the coveted lifetime positions were appointed by Republican presidents.
In the idealistic view, the president evaluates candidates against some standard, then selects a nominee, which the Senate evaluates and then votes approval or rejection. In reality, the senators usually defer to the president.
George W. Bush may understand the importance of judges better than any president has — after all, he was named president by the Supreme Court. He has reduced the role of the American Bar Association in rating candidates, and pushes some nominees who are anti-regulation champions. The effect of his appointments will play out over decades, but already, the first judge he appointed in the West — Sam Haddon, running the district court in Great Falls, Mont., since 2001 — has attempted to limit the scope of the Clean Water Act and the Superfund law. One of those rulings was flip-flopped by an appeals court, and the other may be someday.
The increasing turnovers are a sign of increasing political influence. So it's not surprising that the politics erupt in the Senate, with environmentalists and civil rights groups encouraging outnumbered Democratic senators to block a few nominees to the key appeals courts. Bush keeps reviving nominations that are blocked, and he's bypassed the Senate to make two temporary appointments during recesses.
If President Bush wins re-election, he'll almost certainly appoint one or more Supreme Court justices. While this may result in less flip-flopping, it should concern anyone who is more interested in fairness and balance than ideology.
Ray Ring is a contributor to Writers on the Range, a service of High Country News (hcn.org). He is a field editor for the paper based in Bozeman, Montana.
Note: the opinions expressed in this column are those of the writer and do not necessarily reflect those of High Country News, its board or staff. If you'd like to share an opinion piece of your own, please write Betsy Marston at firstname.lastname@example.org.