Liberals have had their runs at dominating the federal court system, now it's the Republicans' turn. It’s not a sport, but it has some spectacular gyrations: Call it judicial flip-flopping.
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
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.
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
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
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.
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
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.