Senate looks to confirm climate idiot during pandemic

Trump's nominee to the D.C. Circuit claims he's not allowed to accept climate science. He is.

(Mitch McConnell talks with Justin Reed Walker before a hearing on Walker’s nomination for U.S. district judge for the Western District of Kentucky on July 31, 2019. Photo by Caroline Brehman/CQ Roll Call.)

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The U.S. Senate is officially returning to work today. And dealing with the coronavirus isn’t the only thing on its agenda.

According to Politico, one of Mitch McConnell’s reasons for ordering hundreds of people to return to D.C. during a pandemic was to quickly confirm one of Trump’s controversial judicial nominees for a seat on one of the nation’s most powerful courts—a seat that isn’t going to be vacant until September.

This nominee just so happens to be one of McConnell’s protégés. Justin Walker, a 38-year-old former clerk for Brett Kavanaugh, had never been a judge; never tried a case; never served as co-counsel; and received a rare “not qualified” rating from the American Bar Association before McConnell confirmed him to his first federal judgeship last year.

Now, Walker is up for a lifetime appointment on the country’s second-highest court, the D.C. Circuit Court of Appeals—which also just so happens to be the most important court for climate change policy and regulation.

Walker has never even stated on the record if he actually accepts the science of climate change.

In fact, the only thing he’s ever said about climate change is, well, pretty stupid.

Walker says he’s ethically “prohibited” from accepting climate science

In advance of his first confirmation to a federal judgeship last year, Democratic Senator Dianne Feinstein asked Walker if he believes “human activity is contributing to or causing climate change.” 

Walker declined to give an answer. “These issues are implicated by pending or impending litigation,” he replied. “The Canons of the Code of Conduct for United States Judges therefore prohibit me from expressing a view.”

I’ve heard a lot of weird responses to this question before, but never this one. Kyle Tisdel, climate and energy director at the non-profit Western Environmental Law Center, confirmed my suspicions. “This is also not a common response for judicial nominees,” he said. “And not a great indication.”

I asked Tisdel and four other experts in climate law if Walker might be prohibited from speaking about climate science because of an ethical rule, or because of pending or impending cases before the D.C. Circuit. They all said no.

The first reason Walker is allowed to talk about climate science is because there are no pending cases over whether human activity causes climate change, and likely never will be. The D.C. Circuit has already affirmed that human activity contributes to climate change. “A panel including a conservative judge unanimously upheld that finding,” noted David Doniger, a senior attorney at the National Resources Defense Council. “The Supreme Court denied certiorari when asked for review. The Trump EPA has taken no steps to reverse the finding.” In other words, it’s done. Not pending. Not impending. It’s settled.

The second reason Walker isn’t “prohibited” to speak about climate science is that the ethical rule he’s talking about applies to legal issues only. “Human contribution to climate change isn't a legal issue,” said Sean Hecht, co-director of UCLA’s environmental law clinic.

“There's nothing that prohibits a judge, or a nominee, from explaining their view of a scientific issue, or even a public policy issue, if there is no pending case,” he added. “And there isn't a pending case.”

Kassie Siegel, director of the Center for Biological Diversity's Climate Law Institute, agreed. “It’s an absurd response,” she said. “And nobody should be appointed to the federal bench who won’t acknowledge basic principles of science.”

Walker’s limited experience includes defending corporations and Big Tobacco

Walker’s inexperience with basic scientific principles may have to do with his overall inexperience with climate litigation in general. Based on a review of his work, Walker doesn’t appear to have ever worked on a case related to climate change.

Walker did, however, work briefly on a case very near and dear to the climate community’s heart: the government’s fraud cause against Big Tobacco, alleging a coordinated campaign to deceive the public about tobacco’s health impacts.

Walker, of course, worked on a brief on behalf of British American Tobacco, trying to get the company to pay less than the government sought.

During his brief career as an associate at Gibson Dunn and Crutcher, Walker “primarily represented corporations” facing civil litigation in federal and state courts. Walker also briefly worked for Dinsmore & Shohl LLP, a staunch advocate of coal interests. The firm is a member of the Ohio Coal Association, the Kentucky Coal Association, the West Virginia Coal Association, and the National Mining Association.

Walker has also been a member of the Federalist Society since 2006. According to DeSmog, the society “has consistently published articles and hosted debates that frame investigations into ExxonMobil and think tanks that questioning the existence of man-made climate change as attacks on free speech.

”The group has also regularly hosted talks by individuals who oppose the mainstream consensus on man-made climate change including Willie Soon, Oren Cass, Steven Hayward, and others.”

“The D.C. Circuit is absolutely critical to climate law”

If Walker is appointed to the federal bench this week, he’ll gain a lifetime appointment on one of the most powerful courts in the country—especially when it comes to climate change.

“The D.C. Circuit is absolutely critical to climate law,” said Dave Weiskopf, senior climate policy advisor for NextGen America. “Every challenge to federal rulemaking goes there.”

Technically the second-highest court in the nation, the D.C. Circuit regularly hears cases over climate change policy and regulation. That’s because the court has “exclusive original jurisdiction over challenges to many Clean Air Act rulemakings by EPA,” Hecht said. The Clean Power Plan; fuel economy standards; the Trump administration’s expected repeal of methane leak standards—all are either currently before the D.C. Circuit, or on the court’s docket.

The Supreme Court can review D.C. Circuit decisions, but its review is extremely discretionary—meaning oftentimes, the D.C. Circuit is the only stop for lawsuits over climate-related policy or regulations.

“If you’re concerned about the future of climate change regulation in the United States, then you should concerned about who sits on the D.C. Circuit Court of Appeals,” said Michael Burger, executive director of Columbia University’s Sabin Center for Climate Change Law.

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Walker would add more climate drama to the court

The D.C. Circuit already has one judge who refuses to engage fairly with climate science—and has caused problems for the court because of it.

Senior Appeals Court Judge A. Raymond Randolph revealed his hostility to climate science last summer, when he was invited to a climate science seminar for judges. The e-mail invitation promised “neutral, objective information,” and was co-sponsored by the education agency of the judiciary branch, the American Association for the Advancement of Science, and the non-profit Environmental Law Institute.

Randolph was outraged by the concept. In a strongly-worded reply—which he accidentally sent to everyone invited—he called the seminar “nonsense … supposedly science and stuff [which] is nothing of the sort.” Randolph also ripped into the judge who invited him, threatening to report him for ethics violations.

Randolph later apologized, but he maintained his opposition to a seminar on basic science for judges, saying it would “lend credence to one side of the climate change debate that is quite improper” given pending climate-related cases, according to the Washington Post.

Of course, there are no cases that call basic climate science into question. Thus, judicial watchdogs were not satisfied with Randolph’s apology. Following the incident, Randolph was removed from hearing a case over climate regulation; a formal inquiry was launched into his decorum; and several judicial ethics experts called for Randolph’s recusal from all climate-related cases.

Walker is walking down a similar path. Like Randolph, he has demonstrated a propensity for strong, ideological language. And like Randolph, he refuses to engage with basic climate science under the false notion that climate science will be decided by the court.

Are Democrats going to do anything?

There hasn’t been much noise about Walker’s confirmation—from the climate community, or elsewhere.

That worries Siegel of the Center for Biological Diversity. After all, a lifetime job deciding important climate cases would be a very long time for a 38 year old conservative ideologue—too long, considering how quickly we need to act to solve climate change.

“It’s incredibly important that everybody understand what’s going on,” she said. “The Democrats in the Senate need to start doing anything they possibly can to block these nominations. They need to fight harder.”

OK, that’s all for today. Thanks for reading HEATED!

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