Bench Memos

Steven Pearlstein’s Smear of Judge Kavanaugh

To Washington Post business columnist Steven Pearlstein, D.C. Circuit judge Brett Kavanaugh “is nothing more than a partisan shock trooper in a black robe waging an ideological battle against government regulation.” What might invite such extravagant rhetoric? It turns out that Pearlstein thinks that Kavanaugh, in a recent majority opinion (in EME Homer City Generation v. EPA), wrongly overturned an EPA rule that imposed massive emissions reduction requirements on upwind states. Kavanaugh’s ruling, Pearlstein contends, is part of a broader pattern at the D.C. Circuit, “where a new breed of activist judges are waging a determined and largely successful war on federal regulatory agencies.”  

As it happens, two years ago Pearlstein wrote a very similar column about the D.C. Circuit, “which [he claimed] over the past decade has intimidated, undermined, and demoralized the regulatory apparatus.” It’s noteworthy that Pearlstein’s complaint in that column extended well beyond the court’s conservatives:

Even the court’s more liberal members betray an attitude that regulators are a well-meaning but overzealous bunch who, like teenagers, need constant adult supervision from judges who are smarter and wiser. Their decisions frequently scold agencies for failing to dot their i’s and cross their t’s in justifying new regulations, sending the regulators back to try again and again.

Indeed, Pearlstein’s lead target in that column (though he didn’t stoop to calling him a “partisan shock trooper”) was the very liberal, and very smart, Judge David Tatel, who had written an opinion ruling that the FCC did not have authority to regulate an Internet service provider’s network management practices.

Beyond the partisan rhetorical hackery that pervades Pearlstein’s columns (e.g., “the fevered Republican imagination,” the “blatantly partisan bleating” of conservative justices), his criticism of Tatel and other liberals on the D.C. Circuit signals that his more fundamental disagreement is with the reality that in our administrative state judges are charged with enforcing statutory (and constitutional) limits on agency authority. Thus, for example, while Pearlstein faults Kavanaugh for supposedly “formulating his own policy solution” and “substituting it for the solution proposed by experienced experts,” Kavanaugh’s opinion expressly states that it “should not be interpreted  as a comment on the wisdom or policy merits” of the EPA rule, that “It is not our job to set environmental policy,” and that the court was acting only to “ensure that the agency stays within the boundaries Congress has set.” The rest of Pearlstein’s conclusory criticism appears equally inept at grappling with Kavanaugh’s actual ruling.

Pearlstein also alleges that the “prospect that some balance might be restored to the nation’s second-most powerful court has long since faded after Senate Republicans successfully filibustered every nominee put forward by President Obama for the three vacant seats on the D.C. Circuit” (emphasis added). The real story of Obama’s D.C. Circuit nominations—or lack thereof—is quite different:

In what leading Democratic lawyer Walter Dellinger calls “an act of judicial-political malpractice that should be legendary,” Obama took until the end of September 2010 to make his first nomination—of Caitlin Halligan—to either of the two vacancies on the D.C. Circuit that pre-existed his taking office. Instead, Obama first attempted to use a D.C. Circuit seat “as a political booby prize” by offering it to then-White House counsel Greg Craig as a means of easing Craig out of his job. Then, after the White House in early 2010 had settled on Sri Srinivasan for a D.C. Circuit nomination, the Left went after Srinivasan—in part because of union animosity to his corporate clients in private practice, in part because, in his former capacity as an assistant to the Solicitor General, Srinivasan advocated the positions of the Bush administration on Guantanamo war-on-terror detainee issues. Obama caved and abandoned Srinivasan.

Two years later—in June 2012, when there was a near-zero prospect of action on his nomination during the remainder of this year—Obama finally nominated Srinivasan to one of the vacancies. The Senate Judiciary Committee, under Democratic chairman Patrick Leahy, never scheduled a hearing on Srinivasan’s nomination. And Obama never made a nomination to the third vacancy. (Senate Republicans did filibuster Halligan’s nomination.)


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