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Public Radio's Environmental News Magazine (follow us on Google News)

Weighing the Judges

Air Date: Week of

Federal judges, nominated by the President for lifetime appointments determine many environmental cases. A new study suggests if you look at which party nominated them, you can predict how judges will rule under the National Environmental Policy Act. Host Steve Curwood talks with Cass Sunstein, a professor at the University of Chicago, who has written extensively on judicial bias.


CURWOOD: The non-partisan Environmental Law Institute has a surprising new study about judges. If you look at which party nominated them, you can predict the odds of how judges will decide cases under the National Environmental Policy Act. NEPA mandates that the federal government produce environmental impact statements before it undertakes or funds new projects. The language of the law is vague so there is a wide range of interpretation. Cass Sunstein, a professor at the University of Chicago Law School, who's written extensively on judicial bias, is here with us now to talk about this study as well as some of his own. Professor Sunstein, thanks for joining us.

SUNSTEIN: Hello to you.

CURWOOD: What did the Environmental Law Center find?

SUNSTEIN: They found two major things. The first is that if you're in a trial court, a regular district court, just one judge, the likelihood that you're going to win, if you're complaining that the government hasn't complied with a National Environmental Policy Act, is way higher if you have a Democratic appointee who's deciding the case than if you have a Republican appointee who's deciding the case. The disparity is enormous. Fifty-nine percent of the time the Democratic appointees vote for pro-environment plaintiffs under the national environmental policy act, almost 60 percent of the time. For Republican appointees, it's 28 percent of the time. That's a lot lower, less than half. They also found, that is the Environmental Law Institute, also found, that on the Courts of Appeals, you do terrifically well if you're a pro-environment plaintiff if you have three Democratic appointees. Seventy-five percent of the time you win in an all Democratic panel. If you have a three-Republican panel, a Republican-dominated panel, the pro-environment plaintiffs do terribly. They win just 11 percent of the time.

CURWOOD: What do you make of this?

SUNSTEIN: It's a stunning number. It's a very dramatic finding and the reason is that judges are supposed to follow the law and we don't ordinarily think that everything turns on whether you get a Republican or Democratic appointee in the trial court. But, in this case, the numbers aren't just different; they are startlingly different.

CURWOOD: Now, if it depends on the judge you get, if that is true, then the upcoming judicial appointments that the presently conservative administration would like to make would then be tipping the balance then in favor of a particular direction.

SUNSTEIN: That's absolutely right. And the people in the White House and the Bush administration are perfectly aware of this. So, when they say they just want judges who follow the law, they know. What they mean is they want judges who will understand the law in a way that they find sensible and appropriate. And, that means they will not be as environmentally attuned as the Democratic appointees would be.

CURWOOD: This imbalance in our judiciary, to what extent is this most striking in environmental cases or are we seeing it across the board in other areas as well?

SUNSTEIN: It's very striking in environmental cases, but we see it in some areas, too. Let me give you a couple areas where we don't see it. Most important in criminal law, Americans typically believe that Democratic judges are more pro-criminal than the Republican appointees and it just isn't so. In criminal appeals, at least, Republican appointees and Democratic appointees are just about the same. Most people think that Republican judges are more concerned to protect property rights than Democratic judges. There's no evidence of that. On the protection of property rights, the Democratic appointees and the Republican appointees are about the same. In cases involving disabled Americans, there's a huge difference between Republican appointees and Democratic appointees. It's not quite as big as in the environmental context. But, in cases where someone's bringing a lawsuit under the Americans with Disabilities Act, you have a 27 percent chance of getting a Republican appointee to vote for you. You have a 43 percent chance of getting a Democratic appointee to vote for you. In sex discrimination, it's also true. The Democratic appointees are much more sympathetic to women complaining of sex discrimination than Republican appointees are. The biggest of all is on gay rights. It's even higher than environmental cases where Republican appointees almost never vote for gays and lesbians who are challenging discrimination. Democratic appointees vote for them over half the time. So, that's a very big difference.

CURWOOD: Almost never?

SUNSTEIN: Republican appointees, 16 percent of the time, so real small.

CURWOOD: Cass Sunstein is a professor at the University of Chicago Law School. Thanks so much for taking this time with me, today.

SUNSTEIN: Thank you very much. I enjoyed it.

CURWOOD: To read the complete Environmental Law Institute study about bias in the federal judiciary, go to our Web site, Living on Earth dot org. Coming up—allegations of wrong doing in the Yucca Mountain nuclear waste project. Keep listening to Living on Earth.

[MUSIC: Louis Armstrong "Savoy Blues" Martin Scorcese Presents the Blues--A Musical Journey (Universal Music Ent.) 2003]



ELI study on NEPA cases


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