A Pro-Environment Judge Is a Bad Judge

Today’s Associated Press article on Supreme Court nominee Neil Gorsuch illustrates the fact that when it comes to judicial matters, most reporters have no idea what they are talking about. The headline is: “Gorsuch’s environment record: Neither a clear friend nor foe.”

I should hope not! The role of a judge is not to be a “friend” or “foe” of the environment. It is to apply the facts of the case before him to the laws that Congress (or a state legislature) has enacted. Does the Associated Press really not understand this?

Many conservation groups say U.S. Supreme Court nominee Neil Gorsuch is too conservative and too much like the man he would replace, the late Justice Antonin Scalia, to be considered a friend of the environment.

But when it comes to Gorsuch’s judicial record on issues like pollution and environmental regulation, he can’t be painted as someone who always finds in favor of businesses, according to an Associated Press review of his rulings.

No judge “always finds in favor of businesses.” In many cases, perhaps most, one business is pitted against another.

As a judge for the Denver-based 10th U.S. Circuit Court of Appeals, Gorsuch has ruled both for and against causes that environmentalists hold dear.

He voted in 2015 to uphold a Colorado law that requires 20 percent of electricity sold to consumers in the state come from renewable sources.
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But Gorsuch has also ruled against the EPA, as in a 2010 case in which the court found that the agency was wrong to classify land in New Mexico as Indian country when a company sought to obtain a mining permit.

There is no “but” about it. A competent judge will rule for or against a party based on the law and the facts, not the identity of the parties. Only a corrupt judge–we have several such liberals on the current Supreme Court–will ascertain a political narrative and vote to advance it.

The AP inadvertently confers high praise on Gorsuch:

“He follows the law,” said Merrill Davidoff, the landowners’ attorney. “And in this case the law favored the plaintiffs — the landowners — not the government or the government contractors.”

There is one major contemporary issue on which judicial philosophy bears strongly. That is the legitimacy of the administrative state. As I have said repeatedly, the government we live under does not resemble the one that is described in the Constitution. Today, we are governed mostly by a fourth branch, nowhere mentioned in the Constitution, the permanent federal bureaucracy. These office-holders persist from one administration to another, and in many cases resist any effort to bring them into line with a new administration’s policies. They are unelected, unaccountable, frequently incompetent, and almost always Democrats.

If I were president, the only question I would ask a prospective Supreme Court nominee is whether he or she will be willing to take a hard look at whether the administrative state comports with the Constitution. The AP eventually gets to this central issue:

A ruling that most worries some environmental groups came in a case that had nothing to do with the environment. In a much-noted immigration case, Gorsuch was critical of the longstanding Chevron doctrine, which gives deference to federal agencies’ interpretations of ambiguous statutes. Conservationists say that could be trouble for agencies like the EPA, which have the task of interpreting and implementing rules.

“If you look back at the Supreme Court’s rulings involving Chevron, most of those are environmental cases,” said Billy Corriher, deputy director of legal progress at The Center for American Progress, a nonprofit liberal advocacy group. “And I think that’s because the EPA really enforces a lot of statutes that are pretty broad, it gives them broad authority to regulate certain pollution and it leaves it up to the experts to determine exactly what threshold of pollution is acceptable and what threshold is dangerous. Judge Gorsuch would want to get rid of that standard and basically allow judges to substitute their own judgment for the judgment of the agency experts.”

This is a comically twisted interpretation of the issue. The Constitution does not put our lives in the hands of purported “experts,” who nearly always are pursuing a political agenda. What we want is not for judges to “substitute their own judgment for the judgment of the agency experts,” but rather to apply the Constitution to put legislative powers where they belong, in Congress, not in unelected and unaccountable bureaucracies.

Our Constitution does not establish rule by “experts,” it establishes rule by the people. I hope that soon-to-be-justice Gorsuch understands that.

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