Judge Jed Rakoff (some might say the Sheldon Whitehouse of the federal judiciary) has a piece up in the New York Review of Books on the Federal Judicial Center (FJC)’s abortive effort to tip the scales in favor of plaintiffs in climate litigation. I wrote about it previously here — as you will learn if you read His Honor’s article. A few observations may be in order.
First, I appreciate Judge Rakoff’s kind words about my law firm, Torridon Law PLLC. Or as he put it, “a well-connected Washington firm that represents energy companies in high-stakes litigation.” We have a two-time former attorney general, a former energy secretary, a former secretary of state, two former white house counsels, the former attorney general of Virginia, multiple former U.S. attorneys, the seniormost congressional lawyers — and excellent litigators to boot. We’re full service!
Second, it’s fascinating that this article went up today wherein Judge Rakoff defends the robust, secretive, and very scientific process behind the Reference Manual generally and the “Climate Science” chapter in particular. To hear Judge Rakoff describe it, it was all entirely above board, and the only reason anyone in either the FJC or the National Academies of Science Engineering and Medicine (NASEM) would pull it down is fear of mean Republicans cutting their funding. Right?
The problem is that we have the new president of NASEM just this week saying the opposite: “So when we looked at that chapter, we realized there’s a lot we don’t know about the process behind it. But we know the outcome was perceived — for some in good reason, because the authors were associated more with the plaintiffs’ side than with the defense side — as deserving a fresh look.” Oh.
Look, Judge Rakoff was up to his elbows reviewing the manual as its “monitor,” so it makes sense that he’d defend it. But it’s striking for him to come out, guns blazing, against supposed improper political pressure when the president of NASEM is essentially saying, “Yeah, the critics have a point.”
Third, Judge Rakoff defends the climate chapter noting how it was “written by two prominent experts from Columbia” and “was read by five independent reviewers.” No mention of the plaintiff lawyer who wrote the most controversial section with close to zero attribution? The plaintiff lawyer who signed a brief in the Suncor case just last month with his colleagues at Sher Edling LLP, the most active climate plaintiffs in the country? To quote another prominent New York jurist, “Don’t pee on my leg and tell me it’s raining.”
Fourth, the FJC has been explaining why it pulled down the chapter. Its director, Judge Rosenberg, initially said it was because of all the political controversy it engendered. Justice Kagan elaborated on this in Senate testimony, saying that documents like this can’t appear slanted and that the controversy here made it seem slanted. Justice Kagan explained, “In the end, the Federal Judicial Center has withdrawn that chapter from the book on the view that anything that gets so many people riled up, and anything that so many people think, wow, that was way too hasty, there’s still lots of disagreement about things that you presented as entirely agreed upon, should not be in a book of this kind.” That’s because the “entire purpose of this book really is not to take positions on contested and contestable matters.”
According to Judge Rakoff it was really because they were worried that their funding would be cut. Well that’s interesting. Is this just an intuition of a highly political person with long government service? Or is this from actual knowledge he acquired as a judicial éminence grise? If the latter, you don’t need me to tell you how unusual it is for judges to air their deliberations in the New York Review of Books — even on what are administrative matters.
Fifth, there are currently two or three climate lawfare cases in New York, where Judge Rakoff sits. An Obama-appointed judge in the Northern District just ruled on one of them earlier this week, striking down New York’s “climate superfund” law — the sort of which the thrust of Judge Rakoff’s article envisages. Another is pending in the Southern District in front of Judge Castel. I assume Judge Rakoff wants to recuse himself should it or similar cases find themselves on the wheel?
One also wonders if Judge Rakoff consulted with the Codes of Conduct Committee on this article. Canon 3A6 of the Code of Conduct for U.S. Judges is clear: “A judge should not make public comment on the merits of a matter pending or impending in any court.” Judge Rakoff observes in his article, “Still, the essence is that our planet is getting progressively warmer and that, far from being an accident or solely attributable to natural variations, this is caused to a significant degree by human activity, such as emitting excessive quantities of carbon dioxide from various sources, including the combustion of oil, gas, coal, and other fossil fuels. . . .” In other words, the argument made by plaintiffs in climate lawfare cases. He goes on to compare those who question this to tobacco companies — not a loaded comparison at all.
In defending the climate chapter, Judge Rakoff begs the same questions as the climate chapter with the same predetermined litigation outcomes that entails. Avoiding that is the entire point of Canon 3A6.
Lastly, Judge Rakoff’s framing device is Galileo. “In 1633 the Roman Inquisition,” he explains “convicted Galileo Galilei on suspicion of heresy for daring to assert that the earth was not the center of the universe but revolved around the sun.” He goes on that Galileo “was required to abjure his opinion but afterward was rumored to have quietly muttered, ‘And yet it moves.’” Likewise we “may try to deny that human activity is a major cause of the rapid warming of our planet, which has already begun to show signs of looming catastrophe. And yet it warms.”
That Indigo Girls version of the Galileo affair is cute. Galileo, the bold and fearless scientist (like NASEM) — in this reading — was forced to bend the knee to an obscurantist Roman Catholic hierarchy (like Republicans). It’s more than a little ironic, though, if understood in the proper context. The reality of the 17th century was that these were all natural philosophers. The science, philosophy, and theology were all interwoven — including with Galileo himself — and their contested academic relationship to each other was what undergirded the whole affair.
The fact of the matter is that there was a functional Reference Manual for Scientific Evidence at the time. Its chapter on astronomy was authored by Aristotle and Ptolemy, reviewed by the likes of Christoph Grienberger and Tycho Brahe. It was used by the competent judicial body of the day — the Roman Inquisition — to condemn Galileo for questioning the academic consensus of the European learned elite. Sound familiar?
It’s natural to think oneself on the side of the angels, and no one has ever questioned Judge Rakoff’s white hat. History, science, and law, though, are more complex than the simple morality tales the Anthony Faucis of the world tell themselves to justify and maintain their social and political dominance. We nevertheless fail to see the sack that’s on our own back, as Catullus put it.
That’s what courts are for. They’re where you go to get a fair hearing on the law and the facts, independent of manufactured consensus and historical fairy stories. The Reference Manual turned that expectation on its head and — worse still — it did so in conjunction with actual litigants in climate cases.
If we’re going to take our cues from the Renaissance, there are better examples.