A Last Ditch Effort
Wednesday, April 18, 2018
A LAST DITCH EFFORT: Washington Attorney General Bob Ferguson and Noah Purcell of the state’s Solicitor General’s Office this week argue the state’s case in front of the United States Supreme Court. The high court agreed to hear State of Washington v. United States, the culmination of a 17-year legal battle over the state’s duty to protect and restore salmon habitat as part of its obligation to respect tribes’ treaty fishing rights.
The case initially was filed by 21 Washington tribes with treaty-protected fishing rights in 2001. At issue is the state’s obligation to repair road culverts that block salmon from their spawning habitat.
The state does not deny the urgency to address declining salmon stocks but wants to pursue its own timetable and strategies, rather than those imposed by the United States Court of Appeals for the Ninth Circuit.
The appeals court directed Washington last year to upgrade more than 800 fish-blocking culverts. The state seeks a “limiting principle,” guidance from the Supreme Court, on a precedent some fear could be used to remove dams, and limit agriculture, logging and other activities seen as a threat to fish. Eleven states, including Idaho, have filed a brief supporting Washington’s position, as have farm groups in Washington, Oregon, Idaho, and Montana.
In a late development, U.S. Supreme Court Justice Anthony Kennedy recused himself from hearing Washington’s appeal of the order to replace culverts, raising the possibility that a deadlocked high court may let stand a ruling that some groups argue threatens economic activity throughout the West.
Justice Kennedy recused himself after it was discovered by a clerk he’d participated in an earlier judicial decision of the same protracted lawsuit from 1985, when Kennedy was on the federal circuit bench. After learning about the situation, the court said Kennedy declined to hear arguments in the current case.
In the absence of Justice Kennedy, the court’s newest member, Judge Neil Gorsuch—an appointee of President Donald Trump—may hold the deciding vote on the future of fish and tribes.
Elections have consequences that can resonate for many decades, but none are more consequential than the power of presidents to make lifetime appointments to the federal bench. In times of deep polarization and deadlock, this third branch of government plays a pivotal role in advancing policy and shepherding national goals.
Indeed, the Ninth Circuit Court of Appeals itself—long a champion of social and environmental justice, civil rights and the values of the Western states—may be in for a dramatic shock and shift.
In the spring of 2014, friends tried to nudge Judge Stephen Reinhardt, then an 83-year-old liberal stalwart on Ninth District Court of Appeals, into stepping aside from full-time duties so President Barack Obama could nominate a successor. They were not persuasive.
Now Judge Reinhardt, who died earlier this month at age 87, could very well be replaced by a nominee chosen by President Trump.
Obama was unusually sluggish in making federal court appointments, a failing compounded by an intractable Republican Congress that stalled any candidates that were offered. Republican senators blocked 36 judicial nominations in President Obama’s years in office. The result is a tremendous windfall for the Trump administration, and an opportunity to remake the country in his image.
Currently, there are nearly 150 federal district and appeals court vacancies around the country, a number that has risen from just over 100 when Trump took office.
The Ninth is the nation’s largest appeals court, covering nine Western states and dealing with a staggering set of topics from social questions like same-sex marriage to border issues to land resource issues. The appeals court has fiercely pushed back against conservative and supremacist efforts—most pointedly and recently attempts to ban Muslims from entering the country. And of course, the Ninth is known for a steadfast recognition of tribal treaty rights.
In his own court, Reinhardt himself ruled as unconstitutional the phrase “under God” in the Pledge of Allegiance; a Washington state law banning the procedure that abortion opponents call “partial-birth abortion;” Arizona’s English-only official language law; and a 2008 California ballot referendum, Proposition 8, barring same-sex marriage.
The Reinhardt vacancy is one of eight on the appeals court, which has 29 active judges—a vivid illustration of the larger opportunity for Trump to put an enduring stamp on the makeup of the federal judiciary nationwide by installing candidates of a more conservative outlook.
The Trump administration recognizes the opportunity and has been rapidly filling Article III judgeships at Supreme, appellate and district court levels. A recent analysis found Trump is ranked sixth of 19 presidents appointing the highest number of federal judges in their first year, with no signs of slowing.
Article III judges have the ability to set significant precedents over a wide array of policies and laws affecting virtually every aspect of American life—including immigration, freedom of speech and religion, and how an individual can vote.
Trump’s opportunity moves dramatically up the chain to the nation’s highest court, with three current Supreme Court justices in their 80s—including Anthony Kennedy. The others, Judges Ginsberg and Breyer, are recognized as aligned with the liberal side of the court. The average age at which a justice retires from the court is 83.
At a moment when national demographics are dramatically reshaping the ethnic, cultural and electoral face of the country, the nation’s courts are being shaped to thwart those changes for many decades.