Thursday, June 24, 2010

Attacks on judge are attacks on the rule of law
Tom Smith

Somewhere I heard the story of some expat Brit living in Uganda who was watching Adi Amin's rule decline into dictatorship.  When he saw the secret police show up one day to cart off a judge who had ruled against some action of the cannibal tyrant, he knew it was time to leave.  

Now various political hack low-lives are attacking the federal district judge who ruled that the Department of Interior ukase that imposed a six month moratorium on all deep water drilling in the Gulf of Mexico was arbitrary and capricious. 

This is very wrong and reflects a gross lack of appreciation for the rule of law.  Not that incidents that reflect this sort of barbarism, along with various lynchings, arsons, and assorted demagogueries aren't part of the American political tradition, but it should be seen for what it is.  

Moreover, it is hard to see how Judge Feldman could have done otherwise than to rule that the six month moratorium was arbitrary and capricious.  The decision was the very paradigm of arbitrariness and capriciousness.  It will doubtless be used for decades in law schools as an example of a really gigantic decision that was simply pulled unceremoniously from a federal department's butt. (Or it should be, though political correctness may prevent it from being as widely studied as it should be.) Yet while you would not necessarily know it, even gigantic federal departments are supposed to follow rules.  They can't just utterly, transparently make things up.  That's what DOI did here.   Why five hundred feet?  Why six months?  Why just the Gulf of Mexico?  You can't just say, why not?  Or, We Be the Feds and You Shut Up.  When the scientists you invoke are saying, hey, we never said that, that's a problem.  

Of course, the federal government has every right to appeal.  It would be a sad day if the Fifth Circuit, of facing down Jim Crow fame, rolls over for enviro-panic.  I'm optimistic it won't.  Maybe I'm naive, but I think you would have a hard time getting more than two or three votes on the Supremes for the notion that DOI's decision was not arbitrary and capricious.  It really does look like it was some sort of weird collective industrial punishment for BP's (possibly gross) negligence.  It would be shocking indeed if any statute authorized that.  But we'll see.  Could be our legal culture is as sick as an oil soaked marsh.

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Tom Smith