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Arbitrary and Capricious, Indeed

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Posted on Jun 24, 2010

By Ruth Marcus

The confirmation hearings for Supreme Court nominee Elena Kagan are about to get under way—and with them the inevitable denunciations of activist liberal judges substituting their policy preferences for those of elected officials.

Spare me.

If you’re worried about judicial activism, take a look at the Ronald Reagan-appointed federal judge in New Orleans who just lifted the Obama administration’s moratorium on deep-water drilling.

To get to this result, Judge Martin Feldman had to leap over two steep legal hurdles. First, he had to find that the decision to impose a six-month moratorium on such drilling was “arbitrary and capricious.” Second, he had to conclude that allowing the moratorium to remain in place would impose “irreparable harm” on the companies challenging it.

The “arbitrary and capricious” standard is supposed to protect against judicial activism. It means that government agencies are entitled to broad deference if they can show a reasonable basis for their action.

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As the Supreme Court has explained, and Feldman quoted in his ruling, “an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”

So, you might ask, in the context of the Gulf disaster and the moratorium: Has Judge Feldman seen pictures of those pelicans?

In overturning the moratorium, the judge said he could not find adequate justification for its “immense scope.” For one thing, he noted, it prohibited drilling at depths of 500 feet or more—not 1,000 feet, as some experts consulted by the agency had recommended. (The Interior Department, by the way, didn’t do itself any favors by making it seem as if the experts supported the 500-foot moratorium.) For another, the government did not show any risk of safety problems on the 33 other deep-water rigs already drilling in the Gulf of Mexico.

As Feldman put it, “Are all airplanes a danger because one was?” Well, no, but if one model of airplane has demonstrated safety problems, the government can ground similar ones to check for problems. And if there is no way to manage the results of a crash—if you can’t even get ambulances to the scene—then you might want to err on the side of caution.

Which gets to the second legal question: irreparable harm, one of the requirements for lifting the moratorium while the case proceeds. Feldman sees the harm, understandably enough, largely in economic terms. “An invalid agency decision to suspend drilling of wells in depths of over 500 feet simply cannot justify the immeasurable effect on the plaintiffs, the local economy, the Gulf region, and the critical present-day aspect of the availability of domestic energy in this country.”

And those pelicans?

The Gulf spill epitomizes irreparable harm. Interior Secretary Ken Salazar’s order imposing the moratorium finds that continued drilling “poses an unacceptable threat of serious and irreparable harm to wildlife and the marine, coastal, and human environment.”

It could be that the moratorium is too broad, or that it did not adequately take into account the economic consequences of suspending drilling. But why is that for Judge Feldman to decide rather than Secretary Salazar? And where is the conservative outcry over policymaking from the bench?
     
Ruth Marcus’ e-mail address is marcusr(at symbol)washpost.com.
   
© 2010, Washington Post Writers Group


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By samosamo, June 27, 2010 at 12:21 pm Link to this comment

****************

fiftygigs,

I don’t know of any organized religion or corporation that ISN’T
blasphemous and a sacrilege to the whole universe.

Report this

By FiftyGigs, June 27, 2010 at 9:30 am Link to this comment

And not just about judicial policymaking, where is the
conservative outcry about the violation of their
principles of “life” and the sanctity of God’s
creation?

Conservatism is dedicated to the desecration of
religion, subordinating it to political institutions.
It is a movement based on blasphemy and sacrilege.

Report this

By cann4ing, June 27, 2010 at 8:20 am Link to this comment

See “Should Judge Martin Feldman be Impeached?”

http://www.bradblog.com/?p=7909

and:

“Case for Impeachment of Judge Martin Feldman Strengthened by New Details on Oil Firm Holdings”

New evidence reveals willful failure to recuse from oil drilling moratorium case despite full knowledge of conflicts-of-interest…

http://www.bradblog.com/?p=7915

Report this

By ofersince72, June 26, 2010 at 12:32 pm Link to this comment

I really like this campaign finance reform bill
they are going to pass

The NRA and the Sierra Club get exempt..

What kind of shit is that???  It’s   B U L L S H I T

just like everything else they do from health care
to war….....they are inept, corportate sluts, criminals
liars, thieves, cheaters, did I leave anything out???
This includes the judges.

Report this

By Tetro, June 26, 2010 at 6:41 am Link to this comment

It’s time for people on this website, and on the internet, to get off their soapbox and go complain in a real public forum. It’s abundantly clear by now that a power hungry and ignorant class of people are making decisions of incredible importance in this country and for the rest of the world. It’s shameful to see people day after day only giving their two-cents while all of this happens.

Report this

By samosamo, June 26, 2010 at 6:30 am Link to this comment

****************


Just to get this straight and out in the open which surely many
here know this, but this ‘judge’ (paid criminal influenced
peddler) does and did own BP stock, of which he has sold some:

http://www.msnbc.msn.com/id/37937049/ns/disaster_in_the_g
ulf/

So, in one fell swoop, judge Martin Feldman(used to be a
comedian named marty feldman and was funny, this turd of
judge IS NOT) sells some of his stock, called cashing in, and by
appearances has severed a connection to his decision to overrule
the moratorium on offshore drilling as causing irreparable harm
to the companies involved and that the moratorium was
“arbitrary and capricious.”

In the good old days of a real world this fuck judge would, to
save his ass, recused himself from making the decision or been
investigated, most likely prosecuted, relieved of his judgeship
and given deserving punishment.  But now it is just an open
free-for-all and there ain’t a goddamned law in the land that is
worth a shit,  may as well be toilet paper to give the facade of
keeping their asses cleaned.

This is what happens and is as clear a case example of how the
‘control fraud’ from the s & l crisis still exists and enables the
crooks to set the rules or readjust the rules(real orwell’s ‘animal
farm’) to benefit themselves. Horrible in its intent and and
horrible in its use.

Worse still, and this judge’s transgressions ARE on msm and the
dumbstream liabilities to what is left of our democracy either
just don’t GET IT, CARE ABOUT IT or SUPPORT IT! And that is just
about unfixable.

Report this

By MeHere, June 25, 2010 at 4:37 pm Link to this comment

Is this the “united states” or a system of tribal lords —the kind that this country
looks down upon in other cultures?  How can a local judge rule over the federal
government in matters that are vital to the nation? Perhaps it doesn’t matter too
much when the federal government itself cannot figure out what is of vital
importance. Tribal lords then is the way to go until further notice.

Report this

By gerard, June 25, 2010 at 11:10 am Link to this comment

Key point, Peetawonkus, 12:24 pm 6/25

“Funny how “activist judges” are only horrible when they are seen as Liberal activist judges. When they are corporate stooges their wise jurisprudence knows no bounds.”

A long-ago-worn-out legacy of 50’s anti-Communism. What gives it traction in 2010? The Republican Party (and centrist Dems as well) have not changed from fear-driven policies in 60 years. Why?  Maybe because American voters in general incline toward making decisions on the basis of previously learned fears rather than on the basis of possibility and courage.

Could that possibly indicate why the Republicans and half the Democrats are out of date and the country is losing ground due to the drag of reaction instead of looking forward to new possibilities?

There’s something huge in there someplace that needs exploring and exploiting. IMHO as they say.

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Peetawonkus's avatar

By Peetawonkus, June 25, 2010 at 7:24 am Link to this comment

Funny how “activist judges” are only horrible when they are seen as Liberal activist judges. When they are corporate stooges their wise jurisprudence knows no bounds.

Report this

By Rebecca Lowe, June 25, 2010 at 6:49 am Link to this comment
(Unregistered commenter)

As for the plane analogy, I seem to recall that in the late ‘70s all DC-10s were grounded for several months one summer because of a bad crash of a DC-10 in Chicago. I was trying to get to and from Europe that summer, and it caused a lot of problems. There may have been such a moratorium on the Concord at one point, if I remember correctly. Also, those pelicans are heartbreaking, but what is that quote about peoples’ beliefs when their livelihoods depend on it? Oil revenue in Louisiana outstrips fishing revenue, I have read.

Report this

By Lalameda, June 25, 2010 at 5:46 am Link to this comment
(Unregistered commenter)

Please keep reminding, or telling folks for the first time, this affects 33 out of almost 4,000 wells. 33 wells that just might have the same problem the blowout well had. Now who would NOT want similar problems to be discovered?

Report this

By bogi666, June 25, 2010 at 3:55 am Link to this comment
(Unregistered commenter)

How much did this Judge get paid for this decision, is the question. The Federal Judiciary is the easiest branch of government to corrupt due to the life term provisions. Judge Marshall set the precedent in 1803 when he declared the the Federal courts could override Congressional and/or executive decisions. How much was paid to Marshall for that declaration which, according to Marshall, Congress or the President, his cousin Jefferson,couldn’t override. Actually, Andrew Jackson offered a solution when after making a legal decison, however right it was, which forbade the forced relocation of the Indigenous tribes. Jackson famously said “let the Court enforce their decision then” and cut back on the Courts funding. Of course the Court opposed this and in another decision, decided the Court couldn’t be defunded or underfunded. As despicable as Jackson was, he at least challenged the Court.

Report this

By teri49, June 25, 2010 at 2:59 am Link to this comment
(Unregistered commenter)

Why is it that everyone in this country who is actually in a position of authority so damn stupid?  The moratorium affects about 30 rigs out of over 3500 in the Gulf. All the rest of those rigs are unaffected and operating.  How many people can possibly have lost their jobs on those 30 sites? A thousand?  Two thousand? (How many people working on these particular drilling operations are even Americans, one might wonder.) And we are to believe that a thousand people temporarily laid off will wreak “economic devastation” on the Gulf states. Get a grip.
One might also ask why the salaries of the thousand or so laid-off people aren’t simply added to BP’s reimbursement list.  One might also ask why, if the Republicans are so worried about the economic consequences of temporary unemployment, they are so opposed to unemployment benefits.  One might ask; one would wait in vain for cogent responses.

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knobcreekfarmer's avatar

By knobcreekfarmer, June 24, 2010 at 6:27 pm Link to this comment

they, you know “them” the elite rich fuckers that really run the show, will not stop
their quest to have it all until they literally kill the planet. we can complain about it.
we can even protest here and there. but they have the power, PR prowess and
pundants to sell it as good for the “little people.” and what’s really scary is just how
many buy it!

but they only think they’ve won. the finite reality of a physical world will trump the
ponzi scheme they call capitalism-eventually.

of course we will lose in this outcome too. but hey, it’s time for some “change…”

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