Partisan Patterns Detected in Civil Rights, Environment Decisions

Federal judges appointed by Republican administrations -- and the Bush administration in particular -- are expressing, through decisions and dissents, a marked bias against civil rights, environmental, and other public interest litigation, according to two new reports.

A recent report and new update by the People for the American Way Foundation contrasts the rhetoric and reality of President Bush's claim he would appoint to the federal bench only judges who would interpret the law rather than "make it." According to the PFAWF analysis of split decisions by the federal appeals courts, Bush appointees regularly express hostility to civil rights and other public interest litigation as well as to Congress's power to legislate broadly in the public interest.

Through their votes and opinions, primarily dissenting opinions, Bush appointees have advocated changing the law in ways that make it more difficult for aggrieved parties to vindicate their rights and for Congress to legislate in areas such as environmental protection. Bush appointees to the circuit courts have sought to do the following:

• Question the constitutionality of the Endangered Species Act;
• Overturn National Labor Relations Board rulings against anti-union discrimination and unfair labor practices;
• Allow the Bush administration to refuse to disclose its secret contacts with industry in Vice President Cheney's energy task force;
• Make it more difficult to prevent possibly irreparable harm to the environment pending the resolution of legal issues in environmental litigation;
• Toss the legal claims of a woman downstream from a sewage treatment plant that frequently overflowed and discharged raw sewage into a nearby creek, thus contaminating the downstream property owner's private well drinking water; and
• Reject challenges to a panel under the Federal Advisory Committee Act and the Federal Land Policy and Management Act.

The Environmental Law Institute focused in its new report on the National Environmental Policy Act, which is the backbone of environmental law. According to the ELI report, the percentage success rate for environmental petitioners in NEPA cases before the federal appeals courts declines significantly when moving from three-judge panels with Democratic-appointed judges to panels with Republican-appointed judges:

The ELI concludes, "Simply put, the fact that an environmental plaintiff's chances of winning a NEPA case before the circuit courts varies by a factor of nearly six-to-one depending on the party of the judges' nominating president runs counter to our notion of impartial justice."

The differences become even starker when shifting to the success rates of environmental plaintiffs pursuing NEPA claims before district court judges. The success rates decline sharply when moving from Democratic-appointed district court judges to judges appointed by any Republican president to, finally, district court judges appointed by this administration:

The ELI report concludes that NEPA itself is under attack:

Although it is difficult to predict how the trends revealed in this report will play out, the current direction is troubling. More environmental plaintiffs today feel it necessary to bring legal action under NEPA than at any time over the last 25 years, and recent judicial appointees may be more likely to reject environmentalists' claims in their NEPA decision-making. Judicial polarization over NEPA is acute, and may be growing. The fact that party affiliations of judges appear to influence NEPA cases is cause for concern about the objectivity of adjudications under the Act. The issue merits further research and discussion in both the judiciary and other branches to protect the integrity and effectiveness of our nation's bedrock environmental statute.

Ultimately, neither the PFAWF nor ELI analysis yields particularly surprising conclusions; the partisan affiliation of an administration always is reflected broadly in the actual decisions of the judges appointed by a given White House, even if there are often individual appointees who are exceptions to the rule. Given the lifetime tenure of judicial appointments, however, these analyses do underscore the long-term effects of any administration on civil rights, environmental, labor, consumer, and other public interest policies beyond the term of the administration itself. For those who follow regulatory policy in particular, these reports serve as ugly reminders that all three branches of government are equally relevant to protections of the public health, safety, civil rights, and environment.