At least one green is worried that Judge Neil Gorsuch, a potential replacement for Supreme Court Judge Antonin Scalia, who died in 2016, thinks courts should sometimes be able to rule against the advice of government experts.
Counterpoint: Gorsuch Could Make It Harder to Address Climate Change
Posted to Politics February 18, 2017 by Billy Corriher
Editor’s Note: For an alternative viewpoint, please see: Point: Neil Gorsuch Should be Confirmed to the Supreme Court
Judge Neil Gorsuch was not on President Donald Trump’s first list of potential Supreme Court nominees. Judge Gorsuch did, however, appear on a revised list just weeks after he wrote a controversial manifesto arguing that it should be easier for corporations and individuals suing federal agencies to have courts strike down regulations and overrule decisions by experts at agencies like the Environmental Protection Agency.
Anyone concerned about the health of our environment should oppose Judge Gorsuch’s nomination. If Judge Gorsuch is confirmed, his approach to reviewing regulations suggests that he could vote to limit the EPA’s ability to address climate change. And with the pace of climate change now reaching devastating levels, the planet simply cannot afford another justice who would rule for fossil fuel companies and against the EPA.
At the heart of Judge Gorsuch’s August 2016 manifesto is the Supreme Court’s 1984 decision in a case known as Chevron v. NRDC. In Chevron, the Supreme Court ruled that if a federal law is unclear or vague, the courts should not overrule the interpretation by the agency experts that implement the law, unless the agencies clearly got it wrong.
The court’s Chevron ruling was a common-sense approach to judging voluminous, complicated regulations. In practice, this approach means that when the Clean Air Act is unclear, the scientists who decide what level of air pollution could harm human health should get the benefit of the doubt. In other words, judges — whose expertise is in the law, not environmental science or public health — should let agency experts fill in the blanks.
Judge Gorsuch, however, believes that judges like himself should have more power to overrule scientists and policy experts — making it much harder for those who draft regulations to do their jobs. Furthermore, if courts move away from Chevron, some judges might feel pressure to become experts on a range of technical topics, such as air quality regulations, banking fraud and patents. This is an impossible standard for any judge to meet.
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Read more: http://www.insidesources.com/counterpoint-gorsuch-climate-change/
To their credit Inside Sources have also published an alternative viewpoint, an endorsement of Judge Gorsuch.
I like this judge. In my opinion, excessive deference to government experts is a big part of the reason why climate policy is so messed up. Government experts are human like the rest of us, and as subject to sloppy thinking, incompetence, and just being plain wrong as anyone else. When it comes to a court of law, government representatives should be subject to the same scrutiny as any other party.
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” And with the pace of climate change now reaching devastating levels”. Not seen any of that change here.
Judge Gorsuch, however, believes that judges like himself should have more power to overrule scientists and policy experts
Hopefully they will apply the general rule that extraordinary claims require extraordinary evidence.
PaulH
Hopefully ristvan sees this and comments:
IMHO, no judge should be put in the position of second-guessing an expert witness. No single individual could credibly do this.
By analogy, just as corporate executives need to know when to involve expert lawyers, judges should have the discretion to invoke a process to validate an expert witness (different from second guessing). What little I know of court procedures (not much) leads me to believe said procedures actually work against such validation.
I’m assuming one of the risks here is a judge’s failure to use this process may be yet another reason for overturning a decision (if you do it for one, you have to do it for all).
I believe that the problem is a tendency to give precedence to the governments experts vs. any private sector expert.
When it comes to science, there are experts outside of government as well as within. I think the deference was based on the fact that the agencies had a long experience in writing and enforcing regulations within their purview. When it comes to the underlying science, I don’t think they deserve such recognition.
One man’s expert is another man’s fool.
Would you allow an expert like Peter Wadhams or Michael Mann to formulate policy???
I thought not.
Off topic, but I think anyone will enjoy this
http://acsh.org/news/2017/02/16/al-gore-still-demented-after-all-these-years-10874
Government Experts!
A contradiction in terms,at best.
Given the demonstrated ethics of far too many branches of “government” combined with their work ethic..Good Enough for Government is a standard all by its self.
Then the hiring and promotion system of our bureaus..a block of wood can rise to “lead” your average department, by the simple expedient of long service.
Especially a well connected block .
As noted above,we are awash in examples of government employees,passed off as experts,at great expense to taxpayers, when their only qualifications for such title is,
X;an unknown quantity.
Spurt; a drip under pressure.
And the pressure is about to become intense on many of these “experts”.
Other peoples money is running out,the Poly Ticks are feeling the hate, somebody has to be thrown to the mob to facilitate their escape.
Who better than, Government Expert?
I’ve thought that it would be good to have an actual court case involving global warming. By bringing the case to court, there would be forced conditions where BOTH SIDES of the issue would be aired. Today, too much of the public discussion is one sided, and, in particular, the “science is settled” dogma oh the left sees to it that debate is avoided.
Unfortunately, most court battles are dominated by lawyers. That can be OK, provided that the “right” lawyers and judge are involved. I’m not sure that a random court case will let that happen. I was involved in a highly technical court case a number of years ago, and though the judge was bright and willing to learn, he simply did not fully understand all of the engineering issues in the case.
Look at the big picture. They are outnumbered at least narrowly all along the line; in all three branches. So what do they do? Mindlessly attack all along the line. A lot like bad computer AI, actually. And their new executive order seems to be that every time Trump screws up, they have to screw up twice as much and twice as bad.
When the GOP was on the skids after 2008, the GOP marshaled its forces, garnered its favors and struck back hard on two issues. The climate bill was defeated, and Obamacare passed by a whisker. The Tea Party nailed down the house and the Old Boys wooed back the senate. Both wings (largely) set their differences on social policy aside and concentrated on what they agreed on (economics, regulations, role of agencies, etc.).
Poor Schumer. He gets all this. But every time he tries to apply any sense of tactics to the herd of krazy kats he’s shackled to, he’s got his own party tromping on his lawn chanting, “What the **** Chuck.”
So, let’s hope this Movement achieves the same sort of political success it did last time ’round in 1968 (i.e., 20 out of 24 years of GOP presidents and the short rise and long fall of the “veto-proof congress”). Yer beautiful; don’t ever change — Resist, Peace, Out.
You can read a summary of Judge Gorsuch’s opinion here, and the entire thing here.
Billy Corriher’s take seems like overhyped panic to me. Gorsuch is noting the increasing excesses stemming from the Chevron deference and making the case that it’s time to overturn or constrain it.
The following excerpt from Justice Gorsuch’s opinion is worth a read:
This is hardly the raving of someone who feels he is entitled to overrule scientific experts on matters of science, but a thoughtful jurist pointing out that as currently practiced, the Chevron deference requires the courts to defer to administrative agencies on matters of law, even if it overrules their own prior decisions. As he states, if agencies disagree with judicial decisions, their remedy is to get new legislation explicitly endorsing their interpretation.
All of which seems perfectly reasonable to me.
approach to reviewing regulations suggests that he could vote to limit the EPA’s ability to address climate change
the EPA’s charter is limited to air and water pollution and does not include climate change. the EPA is not a climate change agency.
If you wish to judge things, especially in a Supreme manner, surely it is imperative to be capable of challenging experts? What is imperative is to be able to understand the fundamental postulstes being claimed and whether the mechanisms asserted to be valid as evidence streams are robust enough to be relec upon.
I find it highly worrying thwt anyone should take supreme decisions based on an admitted limited level of understanding. It is for bog standard judges to follow precedent. Those considered worthy of setting such precedents must be of an altogether higher standard. Those thinking otherwise should admit they are unfit for the highest levels of judicial office.
Assuming that Supreme Court Judges are not just political pimps hired to deliver judgements for their masters to order….
Politically directed and warped expertise behind the front armor of government is the worst case. Then using unqualified celebrities from other fields to defend the wrong is the tip off that it’s worse than everyone feared.
Judge Gorsuch is not a “potential replacement for Antonin Scalia.”
Gorsuch **will be** the replacement for Antonin Scalia. If the Dems do initially succeed in a filibuster on bringing his nomination to a floor vote, then Senate Majority Leader McConnell **will** change the filibuster rules (as Harry Reid did for lower court judges and executive branch nominees) to get Gorsuch on the Supreme Court with a simple majority vote.
The Democrats would be utterly stupid to filibusterGorsuch though. (not that that has ever stopped them, to wit: Harry Reid’s changing the filibuster rules in 2013.) The clear thinking folks realize that President Trump may have 2 more SCOTUS vacancies before 2020. Ginsberg and Kennedy are quite likely to depart by 2020. One naturally, and one by retirement. Having the filibuster rule removed for SCOTUS would then make Ginsberg’s replacement with a young ultra-Conservative unstoppable. The Dems can throw a tantrum now and lose their ability to argue against a future conservative Ginsberg replacement, just as they had no ability to stop Trump’s cabinet picks (esp. DeVos and Pruitt) because Harry Reid was foolishly stupid in 2013.
Like now, the irony is the Dems trying to engineer an outcome (block a well-regarded Gorsuch) get exactly what they didn’t want in the future exactly because of their foolish drive to placate their far Left zealots.
Judge Gorsuch is not a “potential replacement for Antonin Scalia.”
Gorsuch **will be** the replacement for Antonin Scalia.
If the Dems do initially succeed in a filibuster on bringing his nomination to a floor vote, then Senate Majority Leader McConnell **will** change the filibuster rules (as Harry Reid did for lower court judges and executive branch nominees) to get Gorsuch on the Supreme Court with a simple majority vote.
The Democrats would be utterly stupid to filibuster Gorsuch though. (not that that has ever stopped them, to wit: Harry Reid’s changing the filibuster rules in 2013.)
The clear thinking folks realize that President Trump may have 2 more SCOTUS vacancies before 2020. Ginsberg and Kennedy are quite likely to depart by 2020. One naturally, and one by retirement. Having the filibuster rule removed for SCOTUS appointments would then make Ginsberg’s replacement by Trump with a young ultra-Conservative unstoppable. The Liberal teeth gnashing they threw in response to Scott Pruitt at the EPA would be mild relative to that.
So the Dems can throw a tantrum now and lose their ability to argue against a future conservative Ginsberg replacement, just as they had no ability to stop Trump’s cabinet picks (esp. DeVos and Pruitt) because Harry Reid was foolishly stupid in 2013.
Like now, the irony is the Dems trying to engineer an outcome (block a well-regarded Gorsuch), they would get exactly what they didn’t want (in the future) exactly because of their foolish drive to placate their far Left zealots.
Good discussion.
That sentence literally did leave me Rolling on the floor, laughing my ass off!!! Funny!
It just amazes that people may actually believe that crap.
joelobryan
Some among the chronically under-scientifically-educated will swear to you that they can actually feel the effect of cumulative global warming.
Since retiring to Florida 4 years ago, I have asked a few of these people usually, millennial children of acquaintances at social function) how much global warming has taken place in the last hundred years – general answer is 10-15 degrees.
The expert is dead. Long live the new expert.
Futility defined: Attempting to end the practice of arbitrary and capricious Federal law enforcement. We have long-since passed the point of no return on the popular conception that we are a country of ‘laws, not men’. Obviously the Judiciary knows this and does little to deal realistically with the facts. A cursory ‘Google’ of ‘How many Federal laws there are…’ produced this (below) for starters:
http://www.kowal.com/?q=How-Many-Federal-Laws-Are-There%3F — 20,000 laws on firearms alone!
They’ve been accumulating, of course, for more than 200 years. When federal laws were first codified in 1927, they fit into a single volume. By the 1980s, there were 50 volumes of more than 23,000 pages.
And today? Online sources say that no one knows. The Internal Revenue Code alone, first codified in 1874, contains more than 3.4 million words and, if printed 60 lines to the page, is more than 7,500 pages long. There are about 20,000 laws just governing the use and ownership of guns.
New laws mean new crimes. From the start of 2000 through 2007, Congress had created at least 452 new crimes, so that at that time the total number of Federal crimes exceeded 4,450.
So, want to prosecute anybody, anytime? Pick your law, there’re plenty to go around.
‘Judge Gorsuch, however, believes that judges like himself should have more power to overrule scientists and policy experts — making it much harder for those who draft regulations to do their jobs.’
I see it as forcing those who bring flawed science to bear on anything, to go back and do a better job of it the first time, or give up on trying to force bad science and flawed decisions down our throats.
“…making it much harder for those who draft regulations to do their jobs.”
A better way to phrase this would be:
“…making it necessary for those who draft regulations to do their jobs competently.”
Experts are not dispassionate gods. They are fallible humans subject to the same cognitive foibles as everyone else. Their predictions of the outcomes of most things are no more accurate than those of a dart-throwing monkey.
What experts do have is more facts at their disposal than everyone else. No matter whether they are right or wrong, they will always win arguments with ‘civilians’ based on their superior knowledge. The crude way of saying it is that ‘bullcrap baffles brains’. Thomas Frank nailed it. The liberal elites love complexity because it makes them feel smart. That has served the rest of us poorly.
Agreed. My thesis advisor used to tell the group that if we were unable to explain the importance of our science “to a truck driver in a honky-tonk bar in Texas”, then should ask ourselves why we should expect such people to pay for it.
In the case of climate they do not know more than the rest of us, but all they have to do is claim the information was got by hacking as the UEA did and it can no longer be used publicly. Few individuals can afford to fight the whole resources of a rich university and it is impossible to prove you did not hack it rather than they were just incompetent at using email and did not remember not to use the curry club list instead of the works one.
The climate temperature data set miserably fails the QA requirements used for products sold in Poundland which is reasonably demanding given the budget nature of their goods but nowhere near the requirements of life critical products which the greens are claiming is the nature of climate change. No station measurement setups have to be annually verified let alone before each batch of readings. The skewed urban dominated measurement distribution is so extreme this would also constitute cooking the books in the QA standards.
Wasn’t John C. Beale and expert at EPA?
an expert
Who drafted the law may be important.
In English Contract law, if there is a disputes regarding the interpretation of any clauses within any signed Contract such as vagueness or even ambiguity, then judgement is normally against the Party that drafted the contract. Whether this applies in the USA – I am not certain! Whether a regulation or law can be considered to be a contract between the government (agency) that drafted and issued the law or regulation and the people or legal entities to which this law or regulation applies – I don’t know. Any lawyers here who can comment on this?
That may be giving government experts too much credit. Based on their performance on the climate file, there’s a case to be made that they are MORE subject to incompetence, error and corruption than others and therefore need MORE scrutiny.