Glenn Sugameli of Earthjustice believes that I have misrepresented their critique of Justice Owen. He raises two points. First, he points out that Earthjustice has produced substantive analyses of some of Justice Owen’s opinions so it is unfair for me to suggest otherwise. Writes Glenn, “Earthjustice always provides and posts on our website a detailed analysis of the legal merits of any judicial nominee’s opinions that we criticize.” Second, he believes I mischaracterized the issues in the FM Properties case. Let me address each point.
First, Glenn is correct to note that Earthjustice has produced some lengthy analyses of Justice Owen’s record (see, e.g. here). Nonetheless, I believe it is fair to characterize Earthjustice’s analyses as result-oriented and misleading. The language used to promote the various reports and critiques — that a given justice is “anti-environment,” or favors “special interests over public health and ordinary citizens,” etc. — furthers the perception that judges should be evaluated based upon the identities of the winners and losers or the policy implications of specific cases, not the legal merits of the claims at issue. Glenn objects that some of these characterizations appear in material distributed by the Alliance for Justice, and not Earthjustice itself. True, but last I checked Earthjustice is a member of the Alliance for Justice. And while Earthjustice may “always” always provide detailed analyses of opinions they criticize, they’ve certainly gone after various nominees, such as Miguel Estrada and Henry Saad, without providing much analytical support.
Second, Glenn is correct to note that there is a distinction between delegations to administrative agencies (which are routinely upheld) and delegations to private entities. FM Properties concerned the latter, and environmental groups have typically been staunch defenders of the former. I didn’t note this distinction in my article due to space concerns (though I did in my prior Owen piece). In any event, I don’t think this undermines my point that the criticism of Justice Owen here has little to do with the doctrinal merits or any alleged “activism,” but rather with the end result. Environmentalist groups didn’t like the statute at issue in FM Properties, so they attack Justice Owen’s vote not to strike it down and use it as a basis to oppose her confirmation. Moreover, Earthjustice continues to distribute various fact sheets that distort the legal issues at stake. This one, for instance, suggests that Justice Owen would have “exempted big business from municipal clean-water safeguards,” when it was the statute passed by the legislature that created the exemption. As Justice Owen explained in her dissent, it is not unconstitutional for a state to exempt qualified private landowners from state-authorized local regulation. Whether such exemptions are wise policy is a decision left to the state legislature, not state courts.