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Judicial nominees could be key to Obama’s second-term climate strategy

Date
04 March 2013
Judicial nominees could be key to Obama’s second-term climate strategy

By Evan Juska, Head of US Policy, The Climate Group.

The Senate confirmed Chuck Hagel as secretary of defense on Tuesday by a vote of 58-41. But his unusually contentious confirmation hearing suggests that it’s going to be tough sledding ahead for some of President Obama’s other nominees.

Of particular importance to Obama’s second-term climate policies are the pending nominations of Caitlin Halligan and Sri Srinivasan for seats on The United States Court of Appeals for the District of Columbia, also known as the D.C. Circuit.

Despite having the smallest geographic jurisdiction of any federal appellate court, the D.C. Circuit is responsible for reviewing the rulemakings of U.S. federal agencies – which means that it will determine the legality of any new greenhouse gas (GHG) emission standards coming out of the Environmental Protection Agency (EPA).

So if President Obama plans to make new EPA rules the centerpiece of his second-term climate strategy, he’s going to have to get them through the D.C. Circuit.

The current makeup of the D.C. Circuit is 4 to 3 in favor of Republican-nominated judges. And while judges don’t rule according to the positions of the party that nominated them, conventional wisdom suggests that a president’s policies are more likely to be upheld if the court is staffed with judges who share his views.

Recent rulings by the D.C. Circuit on environmental regulations support this idea. In June 2012, a three-judge panel consisting of two Clinton nominees (Judith Rogers and David Tatel) and one Reagan nominee (David Sentelle) dismissed challenges against current GHG rules, allowing the EPA to move forward with them.

Alternatively in August 2012, the court struck down an EPA rule that required states to reduce nitrogen oxide and sulfur dioxide emissions that cross state lines – with two Bush nominees (Brett Kavanaugh and Thomas Griffith) writing the opinion, and one Clinton nominee (Judith Rogers) dissenting.

If Ms. Halligan and Mr. Srinivasan are confirmed, it would shift the D.C. Circuit’s current 4-3 Republican advantage to a 5-4 Democratic one – increasing the chance that new EPA regulations would be able to withstand legal challenges.

But the road to confirmation will be tough one.

The Senate has already filibustered Ms. Halligan’s nomination, and delayed a hearing on Mr. Srinivasan’s – making President Obama the first president in half a century to finish a full term without an appointment to the D.C. Circuit.

And if the Hagel hearing is any indication, the confirmation process isn’t getting any easier.

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