Michael Gaynor
Will the President-elect nominate radicals for the bench?
By Michael Gaynor
December 3, 2008

Mr. Taylor's considered judgment: "Barack Obama and his advisers should now reflect on scary things that the judges demanded by his liberal base might do."

National Journal'
s Stuart Taylor's latest article — "Judicial Excess on the Left" — highlights the conflict between the duty of the President of the United States to defend the United States and the danger to President-Elect Obama of disappointing his far left supporters if he nominates as justices and judges persons who will follow the law instead of use judicial power to implement the far left agenda.

Mr. Taylor:

"How would soon-to-be-President Obama like it if the courts were to order the Navy — his Navy — to cripple its training in Southern California coastal waters in the use of sonar to detect enemy submarines, and thereby perhaps endanger the Pacific Fleet?

"That's what four Democratic-appointed federal judges in California and two liberal Supreme Court justices voted to do in a recent case, to avoid any possibility of harming marine mammals, not one of which has suffered a documented injury in 40 years of sonar training off the California coast.

"And that's the sort of thing that liberal groups want done by the judges that President-elect Obama will soon be appointing."

Mr. Taylor reported the good news:

"Fortunately, the Supreme Court overturned on November 12, in Winter v. Natural Resources Defense Council, the major restrictions on sonar training that the four lower-court judges had ordered. The majority held that with the nation embroiled in two wars, 'the Navy's interest in effective, realistic training of its sailors' far outweighed the speculative harm that the training might do to the plaintiffs' interest in marine mammals.

"'For the plaintiffs, the most serious possible injury would be harm to an unknown number of the marine mammals that they study and observe,' Chief Justice John Roberts wrote for himself and the four other more-conservative justices. 'In contrast, forcing the Navy to deploy an inadequately trained antisubmarine force jeopardizes the safety of the fleet.'

"Noting that 'antisubmarine warfare is currently the Pacific Fleet's top war-fighting priority,' Roberts explained in detail why the training exercises are essential for effective use by Navy strike groups of 'mid-frequency active sonar.' This difficult-to-master technology is the only effective means of detecting the more than 300 nearly silent diesel-electric submarines in the hands of potential enemies, including China, Iran, North Korea, and Russia.

"This type of sonar bounces loud noises off submarine hulls. It can seriously harm beaked whales and some other marine mammals, although no such injury has been documented off Southern California. The Navy has made extensive efforts to mitigate any possible effects by looking out for marine mammals and reducing or shutting off active sonar transmissions when they come close. But the Navy said that two requirements imposed by the lower courts — shutting down the sonar when a marine mammal is spotted within 2,200 yards and greatly reducing the volume in some conditions — would be crippling.

"Justice Stephen Breyer, joined by Justice John Paul Stevens, concurred separately, except on a technical point. Breyer's opinion demonstrated in detail that the Clinton-appointed District judge (Florence-Marie Cooper) and Carter-appointed Appeals Court judges (Betty Fletcher, Dorothy Nelson, and Stephen Reinhardt) had offered no good reason 'why we should reject the Navy's assertions that it cannot effectively conduct its training exercises' under the lower courts' order."

BUT: Justices Ginsburg and Souter would have affirmed the Ninth Circuit's extremist decision. In Justice Ginsburg's words, "the District Court conscientiously balanced the equities and did not abuse its discretion."

Will the President-Elect replace sensible justices with insensible ones?

Mr. Taylor thinks that it is "quite clear that had he been the commander-in-chief, Obama would have taken the same position in the sonar case that Bush took."

He certainly should take that position.

But will his judicial nominees take that and other sensible positions?

Mr. Taylor:

"Justices Ruth Bader Ginsburg and David Souter....blew off in a single sentence the government's hundreds of pages of evidence that the lower courts' injunction could place at risk the lives of thousands of sailors and marines.

"It may seem far-fetched to worry that enemy submarines might someday sink an aircraft carrier with 5,000 sailors and marines aboard. But no more far-fetched than it would have seemed on September 10, 2001, to worry that terrorists might murder in a single day more Americans than died in the bombing of Pearl Harbor."

Mr. Taylor rightly rejected the dissenting justices' environmental extremism, as follows:

"As for the weight on the environmental side of the scales, Ginsburg and Souter ignored the absence of documented injuries and characterized a 293-page Navy 'environmental assessment' as predicting that the sonar training would cause '170,000 behavioral disturbances' of marine mammals over two years, including '436 injuries to a beaked whale population numbering only 1,121.' But the same document also forecasts that the 'behavioral disturbances' would have only minor, non-injurious effects, mostly on common dolphins; that the 436 injuries to beaked whales, a non-endangered, non-threatened species, were also likely to be minor, such as temporary hearing loss; and that there would be no significant impact on the environment.

"Ginsburg and Souter rested their argument for interfering with the sonar training on the fact that the Navy had not yet completed a full 'environmental impact statement' to supplement its extensively documented environmental assessment. The dissenters saw this as a violation of paperwork requirements imposed by the National Environmental Policy Act.

"The two gave no weight to the fact that the Council on Environmental Quality — which they archly dismissed as 'an office in the White House' — had invoked a regulation providing for emergency exceptions to NEPA. They ignored a provision of the Marine Mammal Protection Act specifying that the Defense secretary can exempt from that law (as he had) any activities that he deems necessary for national defense, even if serious harm to marine mammals is certain. They also ignored President Bush's determination that the training was 'essential to national security.'"

Mr. Taylor's considered judgment: "Barack Obama and his advisers should now reflect on scary things that the judges demanded by his liberal base might do."

Excellent advice!

© Michael Gaynor


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)


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