Earlier this week, the Wonk Room noted that the plaintiffs seeking to end all federal embryonic stem cell funding requested that the same three right-wing judges who handled a preliminary issue in this case be reassigned to hear the case again. To those judges’ credit, they denied this request:
Opponents of stem cell research that uses discarded or unwanted embryos have failed in their bid to, in essence, hand pick the judges who will hear an appeal of a lower court’s groundbreaking ruling barring federal funding of all embryonic stem cell research.
The request got some attention, since it seemed to be a bid to guarantee a conservative panel to take up Lamberth’s ruling and perhaps the Justice Department’s request for a stay that would allow the status quo policy to go remain in place while the appeal is heard. . . .
However, it doesn’t seem to have been reported that on Thursday the three GOP appointees passed up their right under court rules to reclaim the case. So the appeal and possibly the stay will go to a randomly-selected panel, which may or may not include some of the original judges but is highly unlikely to be exactly the same as the original panel.
The practical effect of this decision is that the case is still likely to be heard by a conservative panel — six of the DC Circuit’s nine active judges were appointed by conservative presidents, and those six judges include some of the most right-wing judges in the country. Nevertheless, the panel that the plaintiffs were seeking is unusually conservative even for this very conservative court.
The three judges did not explain why they denied the motion, but such denials without explanation are not uncommon for this kind of judicial order. One possible explanation is that they understood that granting the motion would create a bad precedent that could be used against them in future cases. If conservative plaintiffs can hand-pick a panel of conservative judges to hear their appeal, than what prevents left-leaning plaintiffs from locking in their own preferred panel in a future case?
Hopefully, when a new panel finally decides whether to reinstate funding for stem cell research, that panel will be equally aware of the fact that bad precedents lead to bad consequences down the road.
The primary legal question in this appeal is whether judges are required to defer to the Clinton, Bush and Obama Administration’s interpretation of a federal law, or whether judges can substitute their own views for that of three ideologically diverse administrations. This should be an easy question because a landmark Supreme Court decision called Chevron v. NRDC establishes that judges are supposed to pay a great deal of deference to a federal agency’s interpretation of the law. Were a conservative panel to refuse to pay such deference in a case brought by conservatives, there is little to prevent a left-leaning panel from doing the same when the shoe is on the other foot.