- The Washington Times - Thursday, June 7, 2001

Pending Bush administration appointments to the U.S. Court of Appeals for the D.C. Circuit offer business the best opportunity in years to free itself from government regulations.
President Bush last month nominated two conservatives to the court, which often votes along party lines. If Congress approves their nominations, the Republicans would hold a 7-4 majority in a court that oversees federal agency rulings.
"If I were a lawyer with the Chamber of Commerce, I would be very, very pleased at the prospect of having these nominees on the court," said David Vladeck, litigation director for the Washington consumer advocacy group Public Citizen. "Theyve spent their careers either working for the government or representing big business."
The two nominees, Washington lawyers Miguel Estrada and John Roberts Jr., were expected to glide to confirmation in the Senate. But their approvals were made more uncertain two weeks ago when Democrats gained control of the Senate.
The effect of a strong conservative majority would extend far beyond Washington. In an attempt to ensure uniformity in decisions, Congress designated the D.C. Circuit as the first court to hear appeals from rulings of federal agencies, such as the Environmental Protection Agency, the Occupational Safety and Health Administration and the Federal Communications Commission.
"Some people have suggested that the D.C. Circuit is the second-most important court in the country, next to the Supreme Court," said Elliot Mincberg, general counsel for People for the American Way, a Washington civil rights advocacy group.
D.C. Circuit decisions in the past month have protected tobacco companies from lawsuits by foreign health insurance organizations, affirmed a Federal Energy Regulatory Commission decision in a contract dispute between West Coast natural gas companies, and ruled against a Building Industry Association challenge to the classification of fairy shrimp as endangered.
A victory for conservatives on the appellate court could cut deeply into the aspirations of environmentalists, labor groups and other social activists. They depend on federal regulations to carry out their advocacy efforts.
Mr. Estrada is a Washington lawyer who emigrated to the United States from Honduras when he was 17 years old. As a Justice Department lawyer, he won a 1997 case before the U.S. Supreme Court in which he argued that police should sometimes be allowed to execute search warrants at residences without knocking before entering. Most recently, he has handled appellate cases for the Washington office of the law firm Gibson, Dunn & Crutcher.
Mr. Roberts has worked as deputy solicitor general, a Justice Department lawyer and head of appellate cases for the Washington law firm Hogan & Hartson. He has represented the federal government in Microsoft Corp.s appeal of an antitrust ruling and now represents Toyota Motor Corp. in a case that could diminish the strength of the Americans With Disabilities Act.
Mr. Mincberg described his organizations attitude toward the two nominees as "cautious and you could even say concerned. Certainly both by reputation are very, very conservative."
Groups that favor less government regulation generally are pleased with the nominations.
"I think its a mistake to think of these judges as pro-business or industry," said Roger Pilon, vice president for legal affairs for the Cato Institute, a Washington libertarian public policy foundation. "They are pro-constitution. Its the constitution, properly read, that is pro-business and industry."
Republicans already hold a slim 5-4 majority on the Circuit Court. However, the courts decisions have flip-flopped between conservative and middle of the road.
"I dont think its fair to say that it unwaveringly toes one political line," Mr. Vladeck said.
However, with a 7-4 conservative majority, the Bush administration could be ensuring a long-term conservative orientation on the court, he said. Federal judicial appointments often last a lifetime.
"It would further entrench the conservative wing of the court, theres no question about that," Mr. Vladeck said. "I think the composition of the D.C. Circuit matters to the country at large simply because of the important caseload the court handles."
Transportation Secretary Norman Y. Mineta cautioned against concern over big changes in federal court judgments. Even if all Mr. Bushs conservative nominees win confirmation, other federal courts that have no vacancies are available to hear cases.
Transportation Department cases that have pitted conservatives against liberals have included court interpretations of the Americans With Disabilities Act and the racial goals used by federal agencies in awarding contracts.
Mr. Mineta said the Bush nominees still face obstacles created recently by the shift to a Democratic majority in the Senate. A tough battle over confirmation is expected for any of the nominees who could give the Republicans clear control over the courts.


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