The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[Note: See Updates Below.]
Over the weekend, the New York Times published a story on conservative legal challenges to greenhouse gas regulations and other environmental regulations, pinned to West Virginia v. EPA. The story noted that conservative groups and their allies raise money from conservative sources and push for conservative goals, such as greater legal constraints on federal regulation, and that the WVA v. EPA case could well deliver on these goals.
The story notes that Republican Attorneys General have filed a range of lawsuits challenging greenhouse gas regulations, some of which are pending in lower courts, including the U.S. Courts of Appeals for the D.C. Circuit, about which the NYT writes:
At least two climate cases are pending before the United States Court of Appeals for the D.C. Circuit, which has eight judges appointed by Democratic presidents, nine judges chosen by Republicans, including three Trump appointees, and one vacancy.
Notice a problem?
According to the NYT there are eighteen seats on the D.C. Circuit. Yet as court watchers know, there are only eleven seats on the D.C. Circuit. Six of the eleven judges were appointed by Democratic Presidents (Srinivasan, Rogers, Millett, Pillard, Wilkins, and Jackson) and four appointed by Republican Presidents (Henderson, Katsas, Rao, and Walker). There is one vacancy, for which there is a Biden nominee pending (and there will be a second vacancy, when Ketanji Brown Jackson takes her seat on the Supreme Court this summer, and a Biden nominee pending for that seat as well).
So if there are only eleven judges in active service, where did the NYT's numbers come from? Apparently the NYT chose to include senior circuit judges in its count, which adds two Democratic appointees (Tatel and Edwards) and four Republican appointees (Silberman, Ginsburg, Sentelle, and Randolph). The D.C. Circuit lists all of these judges, without expressly noting which ones are senior, on its website. But even if senior circuit judges are included, there are still only eight Republican appointed judges.
So where did the ninth GOP judge come from? Wikipedia lists James Buckley as a Senior Circuit Judge, perhaps because he was a senior circuit justice (whereas, say, former D.C. Circuit Judges Thomas Griffith and Janice Rogers Brown retired completely), but he has not heard a case in years (and the Wikipedia page, at least as of this afternoon, lists him as "inactive").
But the problem here is not simply miscounting. The problem is with including senior circuit judges in a tabulation of a circuit court's balance. To do so is highly misleading.
Senior circuit judges can sit on panels to decide cases, but senior circuit judges rarely hear a full load of cases. On the D.C. Circuit, senior judges do not sit on motions panels or designated "complex" cases and, most importantly, do not sit on en banc panels unless they were on the initial three-judge panel. Thus, the court's real valence is that of the full en banc court.
Court commentary, whether by news organizations and research organizations, always focuses on the number of active judges when seeking to characterize the ideological or political balance of a circuit court. Indeed, even organizations with an interest in exaggerating conservative influence on federal courts, such as Balls & Strikes, do not count senior judges when tabulating the ideological balance of a court -- nor, for that matter, did the New York Times itself, which followed the convention of only counting active judges in prior news stories discussing the balance of circuit courts. Thus it is quite odd that the NYT chose to include senior judges in its count here (and did so not just with the D.C. Circuit, but with the Fifth Circuit as well, which would be considered conservative whether or not one counts senior judges).
These were not my only concerns with the NYT story. It compared the number of judges appointed by President Biden thus far (68) with the total number appointed by Donald Trump (231). The proper comparison would have been to the number Trump had appointed at this point in his term (42).
In terms of the narrative of a conservative legal juggernaut, the story noted the legal challenges to the Biden Administration's Social Cost of Carbon, but failed to mention that those challenges have been unsuccessful thus far (including on the shadow docket). It also suggested the Supreme Court is poised to overrule Chevron, but failed to mention the Supreme Court passed up that opportunity last week in this term's biggest Chevron case.
Speaking of Chevron, the story claimed Chevron was the plaintiff in Chevron v. NRDC, when it was actually an intervenor on the side of the government and (prior to being edited) the story repeatedly referred to "the Chevron deference" (as opposed to either "Chevron deference" or "the Chevron doctrine").
[Note: As initially posted, I neglected to include a link to the story in question. The link has been added. I regret the oversight.]
UPDATE: I neglected to explain why this particular error -- overcounting GOP-appointed judges on the D.C. Circuit matters for this story, and some asked, so here goes.
A core narrative of the article is that WVA v. EPA is the vanguard of a broader effort to attack climate regulations, and that the appointment of conservative judges is part of that effort. Accordingly, the story notes that there are other pending cases that will further erode the federal government's ability to address climate change. These other cases are the challenges to the Social Cost of Carbon and two pending cases in the D.C. Circuit. So to acknowledge that the D.C. Circuit has a majority of Democrat-appointed judges (6-4 at present, but soon to be 7-4) would blunt the narrative. So, too, would acknowledging that the Social Cost of Carbon challenges have foundered. Note that all of these errors and omissions support the story's narrative.
UPDATE: Another error in the story is the claim that West Virginia AG Patrick Morrissey "argued the West Virginia v. E.P.A. case before the Supreme Court." This is false. The case was argued by West Virginia Solicitor General Lindsay See.
UPDATE: On June 28, the New York Times added the following correction:
An earlier version of this article misstated the number of Republican-appointed judges on the U.S. Court of Appeals for the District of Columbia. There are eight, not nine. An earlier version also stated incorrectly that Patrick Morrisey, the West Virginia attorney general, had argued West Virginia v. E.P.A. before the Supreme Court. He did not.
The story has also been edited to remove the claim that Chevron was the "plaintiff" in Chevron v. NRDC. That revision is not noted in the correction.