Last August, Judge Royce Lamberth, a Reagan-appointed trial judge in DC, suspended all federal funding for embryonic stem cell (ESC) research — a decision which limits such research in a way that even President George W. Bush found untenable. Today, a divided D.C. Circuit panel reversed Lamberth’s decision:

Two scientists brought this suit to enjoin the National Institutes of Health from funding research using human embryonic stem cells (ESCs) pursuant to the NIH’s 2009 Guidelines. The district court granted their motion for a preliminary injunction, concluding they were likely to succeed in showing the Guidelines violated the Dickey-Wicker Amendment, an appropriations rider that bars federal funding for research in which a human embryo is destroyed. We conclude the plaintiffs are unlikely to prevail because Dickey-Wicker is ambiguous and the NIH seems reasonably to have concluded that, although Dickey-Wicker bars funding for the destructive act of deriving an ESC from an embryo, it does not prohibit funding a research project in which an ESC will be used.

To translate this a little, Lamberth held that all federally-funded ESC funding violates the Dickey-Wicker Amendment, which prohibits the use of federal funds for “research in which a human embryo or embryos are destroyed.” Even though no federal money goes to studies that actually destroy an embryo, Lamberth concluded that such research requires scientists to build upon previous research that involved the destruction of an embryo, and that this is not allowed.

Lamberth’s decision, however, cannot be squared with Supreme Court precedent. Under the Supreme Court’s decision in Chevron v. NRDC, judges are normally supposed to defer to an agency’s reading of a federal law unless the agency’s interpretation is entirely implausible, and the Obama administration quite plausibly read the Dickey-Wicker Amendment to only prohibit federal funding of the actual destruction of an embryo — not federal funding of subsequent ESC research. Accordingly, the court of appeals reversed.

Today’s decision is a very hopeful sign that Lamberth’s questionable understanding of this law will no longer undermine stem cell research. Both of the judges who joined today’s majority opinion are conservative Republican appointees. Judge Douglas Ginsburg is a hardcore tenther who once called for a return to an Depression-era vision of the Constitution that struck down child labor laws and other very basic legal protections. Judge Thomas Griffith was appointed by George W. Bush.

Their decision did leave open a slight possibility that Lamberth could try to suspend stem cell research once again. The appeals court expressly decided not to weigh on two alternative claims by the plaintiffs, including a claim that federal ESC funding is illegal “research in which a human embryo or embryos are . . . knowingly subjected to risk of injury or death,” because these claims were not first considered by the court below. Nevertheless, the appeals court made clear that “the plaintiffs have not identified, nor have we found, any precedent for upholding a preliminary injunction based upon a legal theory not embraced by the district court.”

So it appears very likely, if not entirely certain, that stem cell research will ultimately be upheld against all challenges.

Yesterday, Judge Royce Lamberth denied the Justice Department’s request to stay his order suspending federal funding for embroynic stem cell research, which is a ruling that shouldn’t surprise anyone. Before a judge may stay a decision, they must first conclude that the party has “made a strong showing that they are likely to succeed on the merits.” So, if Judge Lamberth had stayed his own decision he would have to more or less concede that his reasoning is open to a strong attack.

There is a thin ray of light in Lamberth’s order denying the stay, however:

Defendants are incorrect about much of their “parade of horribles” that will supposedly result from this Court’s preliminary injunction.

Plaintiffs agree that this Court’s order does not even address the Bush administration guidelines, or whether NIH could return to those guidelines. (Defs.’ Opp’n 5.) The prior guidelines, of course, allowed research only on existing stem cell lines, foreclosing additional destruction of embryos.

Plaintiffs also agree that projects previously awarded and funded are not affected by this Court’s order.

Essentially, the judge appears to embrace a concession by the plaintiffs challenging stem cell research that his order does not affect money that has already been distributed to scientists — it only prevents the government from making new awards. While this limit on his order is cold comfort to scientists whose entire body of research could be rendered useless if they aren’t allowed to continue building on it with new grant money — or, for that matter, to the millions of people with illnesses who could be cured by stem cell research — it does remove the immediate threat of scientists being forced to return money they have already spent.

Additionally, the judge also seems to endorse the view that his order does not prevent the Obama Administration from moving back to the Bush-era policy on stem cells — a policy which allowed research on existing stem cell lines but would not allow new lines to be created.  As I wrote on the day that Judge Lamberth suspended stem cell funding, the judge’s reasoning still appears to prevent restoration of Bush-endorsed projects.  Nevertheless, if Judge Lamberth limits the scope of his order that will, at least, require opponents of embryonic stem cell research to file another lawsuit before they can suspend research that is not specifically forbidden by Lamberth’s order.

Now that Lamberth has denied a stay of his previous decision, that denial can be appealed to the D.C. Circuit.  Hopefully, that court will embrace the same view that was shared by the Clinton, Bush and Obama Administrations, that Congress never intended to prevent stem cell research from moving forward.

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.

Lawyers in the lawsuit attempting to shut down all federal embryonic stem cell funding filed a highly unusual motion yesterday.  If their motion is successful, it will effectively stack the court of appeals panel hearing this case with three far right judges who are more likely to side against scientific research than a randomly selected panel of their colleagues:

Cases in the U.S. Court of Appeals for the D.C. Circuit are randomly assigned to three-judge panels. There’s conflict screening to determine whether any one judge has a financial or other conflict of interest.

In the stem cell case, Judges Douglas Ginsburg, Janice Rogers Brown and Brett Kavanaugh picked up the dispute, heard oral argument in April and issued a ruling in June. The court reversed the dismissal of the claims and remanded the case for further proceedings in the U.S. District Court for the District of Columbia. DOJ is now appealing the issuance of a preliminary injunction that blocks funding for human embryonic stem cell research.

The Gibson, Dunn & Crutcher lawyers for the plaintiffs, Drs. James Sherley and Theresa Deisher, filed a motion about 1:30 a.m. today in the D.C. Circuit asking that the previous panel be assigned to hear the new appeal.

Early in this litigation, the trial judge determined the plaintiffs lack “standing” to bring this lawsuit — effectively saying that, because the plaintiffs haven’t actually been harmed in any way by the defendants, they are not allowed to sue them.  The plaintiffs appealed that determination and an appeals panel of Judges Ginsburg, Brown and Kavanaugh decided that the plaintiffs have standing after all and sent the case back to the trial judge to consider the remaining issues.

Typically, when a case ping-pongs between a trial and an appeals court, the case is assigned to one appeals panel to determine standing and a different panel to decide future issues.  Nevertheless, the plaintiffs’ motion claims that the court should not follow its normal practice “because the original panel is well-versed in the specific facts and law relating to the present appeal.”  It’s tough to believe, however, that this is the real reason why the plaintiffs want to keep their old panel.

Ginsburg, Brown and Kavanaugh are among the most right-wing judges in the country.  Brown once compared liberalism to “slavery” and Social Security to a “socialist revolution.”  Ginsburg is a leading “tenther” who once called for America to return to a discredited era when child labor laws were considered unconstitutional.  Kavanaugh cut his teeth working for Ken Starr’s Clinton-era witchhunt.  When the court randomly assigned these three judges to hear the plaintiffs’ standing appeal, it was like the plaintiffs won the lottery.  Their most recent motion is nothing less than an attempt to rig that lottery.

There also does not appear to be much legal support for the plaintiffs’ motion.  The motion admits that, although the DC Circuit used to provide for “retention of the same panel that handled an earlier appeal in the same case . . . [,] that system is no longer in place as a formal matter.”  Moreover, the motion is only able to find two examples from courts other than the DC Circuit which arguably support their request that their case be heard by the same panel — and one of those examples is nearly two decades old.

Nevertheless, the motion places the Justice Department in an awkward position.  Were DOJ to oppose the motion, they would risk antagonizing Ginsburg, Brown and Kavanaugh even further by potentially implying that they are not well-suited to hear this case.  Perhaps for that reason, DOJ informed the plaintiffs that they “take[] no position on this motion.”

If nothing else, this motion is a very clever attempt to shape the result of this litigation long before the case is even briefed.  Should the motions succeed, opponents of stem cell research will have their dream panel.