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The Regulatory Court

The D.C. Circuit takes center stage, one more time

Aug 26, 2013, Vol. 18, No. 47 • By ADAM J. WHITE
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But in the years that followed, the D.C. Circuit’s most controversial decisions were found not in its constitutional cases, or its regulatory docket, but in its continued role as the local court of appeals. Amidst the crime wave of the 1960s, Chief Judge David Bazelon and Judge J. Skelly Wright issued a series of decisions staunchly supporting and expanding the rights of criminal defendants, including the right to counsel, the inadmissibility of defendants’ incriminating statements, and increased use of the insanity defense. Judge Warren Burger was their most prominent critic, charging in one dissent that his colleagues’ eagerness to suppress confessions “now becomes an end in itself, dominating the administration of the criminal law and making law enforcement more and more difficult.” District Judge Pine, who had blocked Truman’s seizure of the steel industry, declared that the court’s liberals were on “a quest for ‘error’ in order to find grounds for reversal” of criminal convictions, creating “a climate hospitable to the belief that punishment of the guilty is far from certain and may be avoided by technicalities in the law.” Such decisions exemplified the law-and-order controversies that Richard Nixon campaigned on in 1968; after just months in office, President Nixon signed the Court Reform Act, which stripped the D.C. Circuit of its 150-year-old jurisdiction over criminal law in the District. By then, Nixon had already appointed Judge Burger to be chief justice of the United States. 

Having lost its jurisdiction over local matters, the D.C. Circuit now became, above all else, a regulatory court. And that, too, promptly became a matter of persistent political controversy. Here, Judges Bazelon and Wright were again prime movers, as the court pressed strongly against regulatory agencies that the judges saw as being too lenient in their regulatory efforts. This era is perhaps best remembered for a pair of cases later known as Vermont Yankee Nuclear Power Corporation v. Natural Resources Defense Council (1978). Chief Judge Bazelon’s opinions for the court substantially increased the procedural burdens on the Nuclear Regulatory Commission’s licensing of the Vermont nuclear power plant. But the Supreme Court delivered a swift and unanimous rebuke, especially to Bazelon’s conclusion that the NRC needed to further prolong the years-long review process:  


To say that the Court of Appeals’ final reason for remanding is insubstantial at best is a gross understatement. .  .  . The reports filed and reviewed literally fill books. The proceedings took years, and the actual hearings themselves over two weeks. To then nullify that effort seven years later because one report refers to other problems, which problems admittedly have been discussed at length in other reports available to the public, borders on the Kafkaesque.

The D.C. Circuit had thus accomplished the rare feat of aligning the conservative Justice William Rehnquist (who wrote for the Court) with two liberals, Justices Thurgood Marshall and William Brennan. 

And in the same way that the D.C. Circuit became a major focus of the newly elected President Nixon in 1969, so it became a major focus of the newly elected President Reagan in 1981. Weeks before the inauguration, the New York Times’s Stuart Taylor reported that “the D.C. Circuit’s reputation for liberal activism has grown out of countless decisions over the years that have been applauded by advocates of vigorous enforcement of government regulation,” so much so that liberal activists had come to see the D.C. Circuit as their “home court advantage”; “given the court’s record, it seems only a matter of time before it clashes with the Reagan Administration.” 

It certainly did clash—not just with the administration, but with the Supreme Court, which took up cases from the D.C. Circuit three times faster than from other circuits, and reversed the D.C. Circuit four times faster than the other courts, according to a 1984 study in the New York Law Review

“We were, if you will, a trustee for the ghosts of Congresses past,” Judge Patricia Wald, a Carter appointee, later reflected. In 1982, after the court had ruled against the administration in several cases, a public interest lawyer would tell the Times’s Taylor that the D.C. Circuit had become the federal government’s “last bastion of liberalism,” and he hoped that it would stay that way.

It didn’t. In 1986, the same public interest lawyer would tell another Times reporter, “Mr. Reagan has taken the most liberal court in America and turned it into the most conservative. .  .  . If you were on their side, you’d be cheering. For us, it’s tears.” 

By then, Reagan had appointed five judges to the D.C. Circuit, including future Supreme Court justice Antonin Scalia and Supreme Court nominee Robert Bork; he would eventually appoint two more, to be joined by President George H.W. Bush’s three appointees (including future justice Clarence Thomas). 

The D.C. Circuit’s transition away from the Bazelon Era spurred liberals to press the Clinton administration to respond aggressively with prominent progressives. In 1995, when Chief Judge Abner Mikva, a Carter appointee, left the bench to become President Clinton’s White House Counsel, the New Republic’s Jeffrey Rosen criticized the White House for considering a Health and Human Services official for the vacancy instead of other “promising legal scholars.” (The administration considered nominating then-U.S. attorney Eric Holder for the job, according to the Washington Post, precisely because it saw him as “a candidate who is scandal-free and more acceptable to Senate Republicans” than HHS’s Peter Edelman. “They say he probably would sail through the confirmation process, because his tough-on-crime approach would resonate with Republicans.”)

Senate Republicans, well aware of the D.C. Circuit’s role in government, scrutinized President Clinton’s nominations. The Senate confirmed three of his nominees (two by voice votes, the third by a vote of 76-23 ), but the Senate took no vote on a fourth nominee, and the Senate Judiciary Committee declined altogether to proceed on a fifth nomination—that of future solicitor general and Supreme Court justice Elena Kagan.

In the subsequent Bush administration, Senate Democrats took even stronger action against D.C. Circuit nominees. They successfully filibustered the nomination of Miguel Estrada, and they delayed the nominations of Janice Rogers Brown and Brett Kavanaugh for several years before the Senate ultimately confirmed them by narrow margins. The Senate did confirm John Roberts, who later was appointed chief justice (and who had previously been nominated to the D.C. Circuit by the first President Bush but had failed to get a Senate vote), and Judge Thomas Griffith, but it declined to act on a seventh nominee. (Senator Obama voted against confirming Brown and Kavanaugh but for confirming Griffith.) Furthermore, the Bush administration’s nominations occurred against the backdrop of still greater expansion of the D.C. Circuit’s day-to-day role in national policy, as the court became the venue for all manner of Guantánamo detainee appeals.

Having played an influential (and occasionally controversial) role in national politics for nearly two centuries, the D.C. Circuit might have been expected to be an early focus of the Obama administration—all the more so in light of President Obama’s own 2005 speech on the D.C. Circuit’s “special” role in regulatory policy. But in fact, his first term included no substantial effort to reshape the court. 


Indeed, the first word of a possible nomination was particularly inauspicious: In 2010, Newsweek’s Jonathan Alter reported that President Obama had offered a seat on the D.C. Circuit to White House counsel Gregory Craig, simply as a means to remove him from the West Wing. (If such an offer actually occurred, Craig deserves great credit for declining.) 

Later that year, the president finally made two nominations for the court—former New York solicitor general Caitlin Halligan and respected Supreme Court litigator Sri Srinivasan—but he made no substantial effort to secure their confirmations before the 2012 election. After his second inauguration, the Senate unanimously confirmed Srinivasan; the White House withdrew Halligan’s nomination, at her own request.

Just two weeks after Judge Srinivasan’s confirmation, the White House took a much bolder step, simultaneously announcing three more nominees—Supreme Court litigator Patricia Millett, district court judge Robert Wilkins, and law professor Nina Pillard. The president’s supporters welcomed the nominations eagerly: Within hours of the president’s Rose Garden announcement of the nominations, the New York Times editorial board demanded that if the Senate failed to “provide its advice and consent on them soon,” then Senate majority leader Harry Reid should use the so-called nuclear option to change Senate rules, preventing filibusters of judicial nominations.

The left’s fierce urgency owes largely, if not entirely, to a handful of judicial decisions that attracted widespread criticism among activists. First and foremost, in July 2011, the D.C. Circuit vacated the Securities and Exchange Commission’s “proxy access rule,” a regulation requiring corporations to provide information to shareholders regarding shareholder-nominated corporate directors. The court held that the SEC had failed to respond adequately to public comments on the rule’s costs and benefits, as required by an SEC statute. That decision, Business Roundtable v. SEC, spurred the New York Times’s Floyd Norris to bluntly declare that the D.C. Circuit was “controlled by judicial activists who seem quite willing to negate, on technical grounds, any regulations they do not like.” Just days later, the Times called the court Wall Street’s “backup on the bench.” 


In addition to Business Roundtable, a few other decisions attracted political criticism: Noel Canning v. NLRB, a decision holding unconstitutional President Obama’s unilateral assertion that he could appoint officials without Senate confirmation based on his unilateral decision that the Senate had been in “recess”; EPA v. EME Homer City Generation, in which the EPA exceeded its statutory authority, and failed to conduct required public processes, in regulating interstate pollutant emissions; and R.J. Reynolds v. FDA, holding that the FDA violated the First Amendment by requiring cigarette companies to place on packaging graphic depictions of the effects of smoking. The Washington Post’s Steven Pearlstein concluded that the D.C. Circuit’s “new breed of activist judges are waging a determined and largely successful war on federal regulatory agencies”—a “judicial jihad,” according to the headline.

The partisan criticism of these decisions is vastly exaggerated. In Business Roundtable, for example, the court merely applied longstanding administrative-law standards governing all agencies’ obligations to respond meaningfully to public comments and to substantially administer statutory standards governing an agency’s regulatory initiatives, such as the SEC’s requirement to analyze regulations’ costs and benefits. By no plausible stretch of the imagination did Business Roundtable’s judges impose strict new cost-benefit requirements, “to negate,” as the Times’s Norris put it, “any regulations they do not like.” Indeed, in subsequent cases the D.C. Circuit has repeatedly affirmed agency regulations against similar cost-benefit challenges, finding the cases to be “plainly distinguishable” from, or “in no way comparable to,” Business Roundtable, because the agencies did carry out their straightforward obligations under the relevant statutes. One of those unanimous decisions included a majority of judges appointed by Republican presidents; the other decision was written by the very same judge who wrote Business Roundtable. Whether one agrees or disagrees with the D.C. Circuit’s latter decisions, they disprove the preposterous notion that the D.C. Circuit’s judges are antiregulatory “judicial jihadists.”

Similarly, those who seize on the court’s rejection of a single EPA rule, in EME Homer City, as evidence that the D.C. Circuit “has morphed into a hotbed of activist judges” (as a blogger for the liberal American Constitution Society put it) lack any sense of perspective. The same D.C. Circuit has affirmed the vast majority of the Obama administration’s greenhouse gas regulations, a regulatory program that far exceeds the cross-state air pollution rule at issue in EME Homer City in terms of cost and scope. Again, whether one agrees or disagrees with the decisions, they offer no plausible basis on which to suggest that the D.C. Circuit is reflexively, ideologically antiregulatory.

The critics’ attacks on these regulatory decisions rarely grapple with the substance of the cases. This is not particularly surprising: The decisions involved complicated technical subject matter and administrative-law legal standards that lay audiences would probably find mundane—the types of issues that Judge Bork had in mind when he told reporters, “You remember those last lines in The Heart of Darkness: ‘The horror, the horror’? I kid friends that my last words will be, ‘The trivia, the trivia.’ ” 

Nevertheless, the court’s decisions in those cases were well justified by the standards that the court applies under the Administrative Procedure Act of 1946 (APA, the primary statute governing the court’s review of agency actions) and the deep body of precedents developed under that act. The critics’ rhetoric strongly suggests that they are disappointed not by the technical merits of the cases, but rather by the mere fact that the court’s judges decided to rule against the administration’s actions in implementing the Clean Air Act or the SEC’s statutes. This aversion to meaningful judicial review of agency action per se calls to mind Professor Jeremy Rabkin’s own response to Judge Patricia Wald: “What about the will of the Congress that enacted the APA? The ghosts of 1946, what about them? Do they not deserve to have their will upheld?”

Ironically, no judge on the D.C. Circuit has rebuked this type of ideological criticism more sternly than Judge David Tatel, one of the nation’s most prominent Democratic-appointed judges. In 2009, Judge Tatel addressed an Environmental Law Institute symposium on “An Agenda for the New EPA.” In remarks palpably at odds with the event’s otherwise triumphant tone, he offered that “from my D.C. Circuit vantage, I sometimes wonder whether administrative agencies, as well as the organizations and citizens who appear before them, really care about the fundamentals in the way that courts do.” Citing a case in which he joined the court in striking down an EPA water regulation, he observed:

Defending its interpretation [of the Clean Water Act], EPA argued that it could better regulate certain pollutants on a seasonal or annual basis than through daily maximum loads. For all I know, EPA was right. But, as we pointed out, Congress had not allowed it to make that decision. .  .  . EPA’s decision to ignore the statute’s plain words rather than returning to Congress for authority to pursue its preferred policy still baffles me.

“This is not just about satisfying the D.C. Circuit,” he concluded. “It’s about being responsible public servants.” While “the ‘New EPA’ that you are discussing today may have excellent programs it is eager to execute, .  .  . those programs will be legitimate—and will be sustained in court—only if their implementation conforms to the rule of law.”

And Judge Tatel is not the only Democratic-appointed judge on the D.C. Circuit who has stood athwart the very sort of politicized criticism that the liberal critics now launch against the court. Judge Harry Edwards, a Carter appointee, has repeatedly spoken and written against those who attempt to paint the court’s work as political and unprincipled. In a 1998 paper titled “Collegiality and Decision Making on the D.C. Circuit,” Judge Edwards noted that “the public today is constantly treated to rhetoric and innuendo about the purported politicization of the judiciary.” But while critics “might have one believe that judging is entirely political, I maintain, and always have maintained, that appellate judging is fundamentally a principled practice.” Far from being a battleground between warring partisan factions, “the D.C. Circuit is today blessed by ‘the collegiality that is indispensable to judicial decisionmaking.’ That is, we deliberate with one another, and are affected by that deliberation in valuable ways.” He repeated these themes in a speech in 2006.

If any party to the debate is blinded by ideology, it is Norris, Pearlstein, People for the American Way, or other critics who pay far too little attention to the substance of the court’s opinions, and who conveniently ignore the myriad decisions in which the court—including Republican-appointed judges who participated in Business Roundtable and the other “radical” cases—affirmed controversial regulatory and constitutional decisions of the Obama administration. These cases include Seven-Sky v. Holder, in which Judges Laurence Silberman and Brett Kavanaugh (both popular liberal targets) declined to strike down the Affordable Care Act, and Sherley v. Sebelius, in which three Republican-appointed judges (including another popular target, Judge Janice Rogers Brown) affirmed the administration’s policy on embryonic stem cell research. 

In announcing his new nominees, President Obama did not expressly join the chorus of voices denouncing the D.C. Circuit’s work on partisan or ideological grounds. Rather, he justified the nominations strictly in terms of the court’s workload. “There are 11 seats on the D.C. Circuit. When I first took office, there were two vacancies. Since then, two more judges have retired. That means there are four vacancies that need to be filled. .  .  . If we want to ensure a fair and functioning judiciary, our courts cannot be short-staffed.”



His explanation was factually wrong. No judge has “retired” from the court since Judge James Buckley in 2000. Since then, no judge (other than John Roberts, who took a promotion) has left the D.C. Circuit at all. Instead, six judges have taken “senior status.” All of them—including Judges Douglas Ginsburg and David Sentelle, the two who took senior status since 2009—continue to hear cases. Indeed, as the D.C. Circuit’s chief judge, Merrick Garland (a Clinton appointee), explained recently to the Senate Judiciary Committee in a letter summarized by the Wall Street Journal, “of the six senior judges who hear oral arguments, one carries a full case load, one carries 75 percent of an active case load, two carry 50 percent and two 25 percent.” Furthermore, according to Carrie Severino in National Review Online, several of Judge Garland’s colleagues anonymously informed the committee that “the Court does not need additional judges” to handle its workload. “If any more judges were added now, there wouldn’t be enough work to go around.”

The judges’ anecdotes are confirmed by the federal judiciary system’s official data. Since 2001, the court has added four judges (to “replace” four who took senior status). In that same period of time, the court’s workload has remained virtually constant: 1,319 pending cases in March 2001, 1,315 in September 2012. The nation’s courts face many genuine personnel shortages; the federal judiciary formally designates some courts as “judicial emergencies,” a list published on the judiciary website (and linked by the Justice Department’s own website). The D.C. Circuit is nowhere among them; with 17 judges now hearing cases, it has by far the lightest “per capita” appellate caseload in the country.

The D.C. Circuit does not “need” President Obama to appoint more judges. President Obama wants to appoint more judges. As a matter of presidential prerogative, that is a perfectly fine reason to nominate judges—but it is no reason for the Senate to accelerate its own review or confirmation of nominees.

As it happens, the reason that President Obama gave for nominating three new judges is precisely the reason the Senate should act with great deliberation and thoughtfulness in reviewing the nominations. “The judges on the D.C. Circuit routinely have the final say on a broad range of cases involving everything from national security to environmental policy, from questions of campaign finance to workers’ rights. In other words, the court’s decisions impact almost every aspect of our lives.”

They surely do, just as they have since the New Deal, if not the very beginning of the court. The D.C. Circuit has sparked controversy over the years, precisely because of the singular role it plays in our constitutional government. 

Adam J. White is a lawyer in Washington, D.C., and a former clerk on the U.S. Court of Appeals for the D.C. Circuit. 

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