Tuesday, October 2, 2018

Kavanaugh's Environmental Record and Lack of Judicial Temperament

The recent spectacle on display in the Senate Judiciary Committee hearings is an unfortunate distraction from the substantive task of determining Kavanaugh's judicial suitability for the Supreme Court. In other words, would he be a fair judge? We should look to Kavanaugh's judicial record on a number of issues to determine the answer.

On the environment, Kavanaugh repeatedly sides with industry and against regulatory authority. Kavanaugh's preference to side with industry is made clear in his judicial opinions on cases before the U.S. Court of Appeals for the District of Columbia Circuit. He sided with industry 89% of the time for less clean air and water and 95% of the time against species protections.

A striking example of his apparent bias is the contrast between his opinions on White Stallion Energy Center v. EPA and EME Homer City Generation v. EPA.  In the White Stallion case, Kavanaugh believed that costs must be considered when considering them would lead to less stringent standards; but in EME Homer, he said costs cannot be considered when considering them would lead to more stringent standards[1].

If Kavanaugh were to be confirmed, his pro-industry bias would shift the balance of the court away from environmental protection. Based on his record of judicial opinions, he would likely uphold recent weakening of environmental regulations, such Trump administration intentions to replace the Clean Power Plan and dismantle the Clean Water Rule.

More relevant than questions about what Kavanaugh did or didn't do 36 years ago in high school are questions about his judicial temperament from the American Bar Association during his nomination to the U.S. Court of Appeals and apparent pro-industry bias in his recent judicial decisions. These questions are the ones that actually matter in Supreme Court confirmation hearings. Who will ask them?

~Mark Bremer, Green Explored Contributor
---------------
[1] Michael Livermore, Judge Kavanaugh and the environment,SCOTUSblog (Jul. 18, 2018, 1:27 PM), http://www.scotusblog.com/2018/07/kavanaugh-and-the-environment/

2 comments: