George W. Bush is not the president. His last EPA Administrator is warming two seats on corporate boards. Yet the dead hand of the Bush Administration continues to choke environmental protection in its grave:
[A] divided three-judge panel threw out rules requiring states to control the air pollution that wafts over their borders into other states. These rules were first ordered up by Congress back in 1970, have been more than 20 years in the making and had already been the subject of two challenges before the D.C. Circuit.
According to estimates by the Environmental Protection Agency, these regulations would prevent between 13,000 and 34,000 premature deaths, 15,000 non-fatal heart attacks, 19,000 hospital and emergency room visits and 1.8 million days of missed work or school for each year. The projected annual compliance cost is $2.4 billion, compared with the annual health benefits of anywhere from $120 billion to $280 billion.
But in reading the 60-page opinion by Judge Brett Kavanaugh, you’d have no clue of this historical, political, economic or health context.
Judge Kavanaugh was appointed to the DC Circuit by President Bush, and is widely viewed as a likely Supreme Court nominee in a Republican administation. His opinion was joined by Judge Thomas Griffith, another Bush appointee to the same court.
Nearly half of the eight active judges on this court, which is more powerful than any tribunal other than the Supreme Court due to the large number of major regulatory and national security decisions on its docket, are Bush appointees. The third is Judge Janice Rogers Brown, who recently wrote an opinion suggesting that all labor, business or Wall Street regulation is unconstitutional and who once compared liberalism to “slavery” and Social Security to a “socialist revolution.” Bush’s fourth appointment to the DC Circuit no longer sits on it because he was later promoted to Chief Justice of the United States.
So Republicans fought hard to stack this court with some of the most consistently ideological judges in the country, and President Obama and his allies have not met this effort with equal force. His first nominee to the court, a brilliant former Supreme Court clerk named Caitlin Halligan fell victim to a Senate Republican filibuster despite the fact that her opponents have struggled to articulate a case against her. When Janice Rogers Brown faced a Senate filibuster, her supporters simply bulldozed her through by threatening to abolish judicial filibusters altogether.
Even if President Obama is reelected and Democrats hold the senate this November, the GOP’s campaign to hold onto key courts through filibusters is unlikely to end. There is a silver lining, however. When the newly elected senators take their seats in January, a brief window will open up allowing the Senate to reform or abolish the filibuster altogether by a simple majority vote. If Senate Democrats do not seize this opportunity, it is likely that the dead hand of the Bush Administration will continue its hold on key courts for many years to come.