I don’t have a lot to say about Judge Barrett, whose nomination under these circumstances I’d urge the Senate to reject if she were Brandeis reincarnated. But I did want to flag this @dino_grandoni coverage of her remarks yesterday about #ClimateChange washingtonpost.com/politics/2020/…
“I am not a scientist.” Eyeballs rolling skyward, for several reasons of which I’ll note just one. Judges are legal specialists, which is obviously necessary to a point. But it also means they can really screw things up when they choose to rule on substantive issues....
....about which they know little. I recall vividly, for example, years of confused litigation and EPA rulemaking produced when Judge Barrett’s idol Antonin Scalia decided regulations pursuant to the Clean Water Act directed at protecting habitat and water quality....
....offended his aesthetic sensibilities; it didn’t seem to him that government agencies were defining an essential phrase as his own technical resource — Webster’s Dictionary — did. Justice Kennedy, no more a hydrologist than Scalia but equally sure he knew better than....
....a bunch of robe-less bureaucrats how to apply the Clean Water Act, decided he wanted to split the difference between upholding and striking down the regulation that so offended Scalia. The resulting 4-1-4 split in the Rapanos case threw a major sector of environmental law...
....into confusion for years without damaging Scalia’s reputation for legal brilliance or Kennedy’s for probity, reflecting the American legal profession’s insularity and self-regard.
Now, Barrett is probably a slightly different case. Her “I am not a scientist” no doubt truthfully suggests a very limited interest in & understanding of climate science. But it is also part of the by-now familiar judicial confirmation two-step, wherein a nominee....
....who knows perfectly well she’ll try to strike down any climate change legislation a Democratic Congress might pass — this was, after all, part of the reason she was nominated by a climate change-denying President — secures her ultimate career ambition....
....by not telling those losers in Congress anything that might disrupt her confirmation by Senate Republicans eager to shift policymaking from their own hands to those of the judiciary. Barrett’s is more of a political project than the arrogant personal display Scalia & Kennedy
....made in Rapanos. With that distinction made, the narrow specialization of the Supreme Court’s small membership is guaranteed to produce more rulings based on Justices’ uncertain grasp of the real world. It’s a problem the next Congress should address. [end]
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