Federal judges and the environment
January 28th, 2008A new, comprehensive study of all NEPA (National Environmental Policy Act) cases from 2001-2004 shows that federal lower court judges appointed by a Democratic president ruled in favor of the environmental plaintiffs almost 60% of the time, while judges appointed by a Republican ruled for the environmental side only 28% of the time. Judges appointed by President George W. Bush ruled for the environmental side only 17% of the time. At the federal appellate court level, those panels with a majority of judges appointed by a Democratic president ruled pro-environment 58% of the time. In contrast, Republican-majority panels ruled that way only 10% of the time.
The study is on the website of the Environmental Law Institute in Washington, DC, and is titled “Judging NEPA: A Hard Look at Judicial Decision Making Under the National Environmental Policy Act.” Its authors also take note of Professor Cass Sunstein and colleagues’ 2003 empirical study of appellate decisions in several areas, including environmental regulation. Sunstein found ideological voting patterns, moderated by peer group dynamics of the judging panels. He concluded that “the political party of the appointing president is a fairly good predictor of how an individual judge will vote.”
So there again is empirical proof that, as Cardozo said, judges “do not stand aloof” on “chill and distant heights.” He added, “we shall not help the cause of truth by acting and speaking as if they do.”