FedSoc Blog

Are Liberals Trying to Intimidate D.C. Circuit Judges?


by Publius
Posted November 07, 2012, 8:09 AM

According to an editorial in the Wall Street Journal:

Federal regulators have been watching in horror as some of their best-laid rules are overturned in court. You might think the sensible response would be to rewrite those rules to comport with the law. Instead, they've launched a campaign to blame and stigmatize the judicial referees.

In recent weeks, liberal journalists have unleashed a remarkable assault on the D.C. Circuit Court of Appeals, the nation's leading appellate court for legal challenges to new regulation. This is the court that produced Supreme Court Justices Antonin Scalia, Clarence Thomas, Stephen Breyer and Ruth Bader Ginsburg, and its 13 judges are hearing challenges to the rule-makings for Dodd-Frank and by the Environmental Protection Agency, among others.

Columnists and reporters for the Washington Post and New York Times have led the charge, which in Washington doesn't happen by spontaneous combustion any more than the attack in Benghazi did. These writers almost certainly are listening to sources in the bureaucracy who don't want to criticize the judiciary themselves so they find someone else to do it.

One columnist went so far as to declare that the D.C. Circuit is "controlled by judicial activists who seem quite willing to negate, on technical grounds, any regulations they do not like." Notice how that substitutes ad hominem argument for legal substance.

Perhaps that's because many of these D.C. Circuit opinions have been joined by Democratic and Republican appointees. These include a series of cases rejecting Securities and Exchange Commission rules for not doing adequate cost-benefit analysis. The left was enraged in particular by a July decision rejecting the SEC's rule on so-called "proxy access" that would have increased union power on corporate boards.

Commissioner Bart Chilteon of the Commodity Futures Trading Commission declared at a conference in March that by litigating over cost-benefit analysis, Wall Street was responsible for an "obnoxious bastardization" of the regulatory rule-making process. "We are virtually paralyzed by intimidation—or indeed, the reality—of lawsuits," The Wall Street Journal reported Mr. Chilton said.

Yet cost-benefit analysis is a core obligation of regulators lest their rules be "arbitrary and capricious," in the legal term of art. Five of the D.C. Circuit's rulings were unanimous and included such Democratic-appointees as Bill Clinton appointee Judith Rogers and Jimmy Carter appointee Harry Edwards. In the sixth, Judge Rogers was joined by George W. Bush appointee Brett Kavanaugh in striking down a rule that would have exempted certain broker-dealers from being regulated as investment advisers. Judge Merrick Garland, a Clinton appointee, dissented.

Judge Kavanaugh seems to be a particular target of liberal ire, perhaps because at age 47 he's young enough to be considered for a future Supreme Court nomination. By stigmatizing Judge Kavanaugh, as well as Judges Douglas Ginsburg and Stephen Williams, the left may also be warning Democratic appointees that they'll pay a price in public reputation if they join their decisions.

In March 2012, the Federalist Society hosted its annual student symposium on the theme "Bureaucracy Unbound: Can Limited Government and the Administrative State Co-Exist?" One panel of relevant interest was on "The Rule of Law and the Administrative State":

The rule of law, whatever that term describes, is one of the central concepts in Anglo-American jurisprudence. Does the administrative state, either in its operation or in the legal moves necessary for its validation, undermine or support the rule of law? Does modern governmental administration, and modern conditions of life, require some redefinition of the rule of law? Is there a relationship between the rule of law and the separation of powers, and if so, how does the administrative state affect that relationship? This panel, in short, will explore how the administrative state relates to fundamental jurisprudential principles.


  • Prof. David Barron, Harvard Law School
  • Prof. Richard Epstein, New York University School of Law
  • Hon. Brett Kavanaugh, U.S. Court of Appeals, District of Columbia Circuit
  • Prof. Peter Shane, The Ohio State University Law School
  • Moderator: Hon. Carlos Bea, U.S. Court of Appeals, Ninth Circuit

You can watch a video of the panel here.


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