How will President Obama's judicial appointees affect the federal courts? Earlier this week, the Federalist Society hosted a teleforum conference call to discuss that subject. Brett Shumate of Wiley Rein addressed the impact of the president's appointments on the D.C. Circuit, and I addressed the same question as applied to the Ninth Circuit, with particular reference to the latter court's environmental law jurisprudence.
The president has appointed seven new judges to the Ninth Circuit. Interestingly, three of them come from the same California appellate law firm, Munger Tolles & Olson. The remainder have the typical background of DOJ and lower court experience. Although all of the appointments could fairly be described as liberal in their basic outlook, they appear to lack much of the "green" taint of prior Democratic appointees to the Ninth Circuit. Instead, the new appointees appear to prefer to defer consistently to federal agency decision-making, even as against environmentalist challenges to an arguably "anti-green" result.
For example, Judge Nguyen (a recent Obama appointee) deferred to the agency in Alaska Wilderness League v. Jewell to uphold an oil spill prevention plan, over a strong dissent from Carter appointee Dorothy Nelson. Similarly, in Alaska Eskimo Whaling Commission v. EPA, Judge Owens joined the panel decision affirming a Clean Water Act permit allowing oil and gas-related discharges into the Beaufort Sea). And even when the government is not directly involved, the president’s appointees have been loath to expand the reach of environmental laws: in Center for Community Action v. BNSF Railway, Judge Murguia (another Obama appointee) wrote the panel opinion holding that railroad diesel emissions do not qualify as regulable solid waste under the Resource Conservation and Recovery Act.
Remarkably and happily, the president's appointees occasionally vote in a decidedly pro-property rights manner. For example, in Drakes Bay Oyster Co. v. Jewell, Judge Watford dissented from the panel majority's decision upholding the government's decision not to renew a use permit for a long-standing shellfish operation located on federal land. Also, in Rocky Mountain Farmers Union v. Corey, Judge Murguia dissented from the panel majority's decision upholding against a Dormant Commerce Clause challenge a California greenhouse gas regulatory program.
But this is not to say that the president's appointees are indifferent to the environment. For example, Judge Hurwitz wrote the controversial en banc opinion in Organized Village of Kake v. Department of Agriculture, overturning the Bush Administration's relaxation of the "roadless rule" for the Tongass National Forest. That opinion elicited a vigorous dissent from Judge Milan Smith, joined by several other GOP appointees. Also, Judge Hurwitz specially concurred in Ecological Rights Foundation v. PGE to note that utility poles may, in some circumstances, be regulable "point sources" under the Clean Water Act.
The main take-away from the podcast discussion, in my view, is that president's appointments will liberalize the jurisprudence of the D.C. and Ninth Circuits, with more impact being observed in the D.C. Circuit because of its relatively smaller size and relatively more conservative baseline.