Sustained Outrage

GOP candidates on Marcellus Shale drilling

The Associated Press had a story over the weekend about the differing views of various candidates for governor of West Virginia about Marcellus Shale drilling … and the Sunday Gazette-Mail included the following questions and answers from the candidates on the issue:

Do you believe West Virginia needs new regulations for oil and gas drilling? If so, what specific requirements should be in the legislation?

— Clark S. Barnes:

We must address: Surface owners’ rights, protection of the aquifer which residents depend upon for their personal needs and for livestock use, the amount and location of water removal needed for the drilling and “fracking” process and, the disposal of chemically treated fluids used in the drilling process.

— Mitch B. Carmichael:

I believe that existing regulations for oil and gas drilling are working well. I do support additional DEP inspectors to ensure that regulations are enforced, water supplies are pure, and surface owners are protected.

— Ralph William “Bill” Clark:

We need lower corporate taxes and a competitive severance tax for energy companies, to guarantee profitability, but higher permit fees to pay for more inspectors. We must protect water quality and quantity and surface owners’ rights — now and for the future — and require disclosure of chemicals used in the fracturing process.

— Larry Faircloth:

While capitalizing on natural resources, the environment and property rights must be respected. As governor I will introduce legislation to protect landowners, water systems, rivers and streams as we explore for and extract oil and gas reserves.

— Betty S. Ireland:

— Predictable regulatory process

— Responsive, consistent, balanced permitting process

— Process for local governments/municipalities to provide feedback

— Citizens assured that drilling provides a direct and significant economic benefit

— Consistent and predictable process for individual landowners to insure fair and equitable treatment

— Assurance of outstanding water resources with exemplary water quality

— Bill Maloney:

We already have regulation on oil and gas, including the Marcellus Shale. When I’m governor, West Virginia will drill. We need to streamline the permitting process to ensure we take advantage of this huge potential, while protecting property rights and addressing environment concerns.

— Mark A. Sorsaia:

Yes we do need new regulations that will insure the quality of ground water, and public safety. Our regulations must place us in a competitive position that will promote the development of our gas resources.

Governors race: Candidates talk fracking

In Sunday’s Gazette-Mail, our political staff asked the Democratic candidates for governor of West Virginia this question:

Do you believe West Virginia needs new regulations for oil and gas drilling? If so, what specific requirements should be in the legislation?

Here are their answers:

Jeff Kessler

Yes. More DEP inspectors and regulations that include protection of our water resources; protection of landowner surface rights; repair of our roads and highways; fair distribution of the production royalties to mineral right owners; that West Virginia residents are employed in the industry and that adequate severance dollars are collected.

John Perdue

Before we start drilling in the Marcellus Shale, we should first set regulations that will allow us to extract the gas in an environmentally safe way, provide protections for our water supply and establish landowner’s rights.

Natalie Tennant

Responsible development of our natural resources will allow West Virginia to create thousands of new jobs and strategic investment in education, research and technology. We must, however, ensure we protect our environment, our roads and our communities. We must also ensure companies hire West Virginians for West Virginia work.

Rick Thompson

Yes, and that’s why I proposed a special session to deal with the issue. Producers need a process that is understandable, attainable and reasonable. Communities need to be assured that their groundwater and infrastructure are protected and surface owners need assurance their rights are protected.

Earl Ray Tomblin –

Yes. The Marcellus Shale presents an enormous economic opportunity, and I support drilling in a responsible and reasonable manner. I proposed additional funding for inspectors to ensure compliance with regulations, and I will continue pushing the Legislature to provide that money and adopt reasonable regulations.

In this photo made off NHK TV video footage, a Japan Self-Defense Force helicopter dumps water over the No. 3 unit of the Fukushima Dai-ichi nuclear power plant in Okumamachi, Fukushima Prefecture, Thursday, March 17, 2011. The Japanese caption reads: “No. 3 unit of Fukushima Dai-ichi nuclear power plant, Japan Self-Defense Force helicopter began to dump water.” (AP Photo/NHK TV)

A lengthy McClatchy Newspapers story about how Japan’s nuclear plant crisis is affecting energy policy debates here in the United States had an interesting passage quoting West Virginia Sen. Jay Rockefeller:

Senate Commerce Committee Chairman Jay Rockefeller, D-W.Va., for instance, noted that while he’s “not a big fan of nuclear power … we don’t make (decisions) out of emotion; we don’t make them because of a catastrophe in another country. So before we make the decision, let’s be thoughtful about it.”

Among the flurry of media reports coming out of the Japanese crisis, a couple of things are especially interesting.

First, there’s a New York Times story that explains:

The warnings were stark and issued repeatedly as far back as 1972: If the cooling systems ever failed at a “Mark 1” nuclear reactor, the primary containment vessel surrounding the reactor would probably burst as the fuel rods inside overheated. Dangerous radiation would spew into the environment.

Now, with one Mark 1 containment vessel damaged at the embattled Fukushima Daiichi nuclear plant and other vessels there under severe strain, the weaknesses of the design — developed in the 1960s by General Electric — could be contributing to the unfolding catastrophe.

When the ability to cool a reactor is compromised, the containment vessel is the last line of defense. Typically made of steel and concrete, it is designed to prevent — for a time — melting fuel rods from spewing radiation into the environment if cooling efforts completely fail.

In some reactors, known as pressurized water reactors, the system is sealed inside a thick steel-and-cement tomb. Most nuclear reactors around the world are of this type.

But the type of containment vessel and pressure suppression system used in the failing reactors at Japan’s Fukushima Daiichi plant is physically less robust, and it has long been thought to be more susceptible to failure in an emergency than competing designs. In the United States, 23 reactors at 16 locations use the Mark 1 design, including the Oyster Creek plant in central New Jersey, the Dresden plant near Chicago and the Monticello plant near Minneapolis.

G.E. began making the Mark 1 boiling-water reactors in the 1960s, marketing them as cheaper and easier to build — in part because they used a comparatively smaller and less expensive containment structure.

American regulators began identifying weaknesses very early on.

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Do Clean Air Act regulations hurt the economy?

Some of you might have missed her testimony, because House Republicans rarely let EPA Administrator Lisa Jackson finish a sentence today before they interrupted to complain about how EPA regulations were hurting the nation’s economy.

But if they had listened to Jackson just a little bit, they might have heard some interesting statistics about the federal Clean Air Act, such as:

In 1990 alone, EPA’s implementation of the Act prevented an estimated 18 million child respiratory illnesses, 850,000 asthma attacks, 674,000 cases of chronic bronchitis, and 205,000 premature deaths.


The mere monetary value of saving Americans from those harms through implementing the Clean Air Act is projected to reach $2 trillion in 2020 alone. Over the period from 1990 through 2020, the monetary value to Americans of the Act’s protection is projected to exceed the cost of that protection by a factor of more than 30 to 1.

That’s just part of what Jackson was trying to tell members of the House Committee on Energy and Commerce during a hearing that focused on efforts to rewrite the Clean Air Act to block EPA from regulating greenhouse gas emissions. She summarized some of the law’s benefits in this letter to the committee’s ranking Democratic member, Rep. Henry Waxman.

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Obama’s confirmation scorecard

(AP Photo/Charles Dharapak)

Earlier this month, Russell Wheeler of the Brookings Institution published an interesting comparison of judicial confirmations during the first two years of the administrations of Presidents Barack Obama, George W. Bush and Bill Clinton. Interestingly, all three faced Democratic majorities in the Senate, although under President Bush the margin was a very slim 51-49.

Wheeler started with the general observation that under the five presidents preceding Obama, the percentage of circuit court nominees confirmed by the Senate has crept downward (Carter 92 percent, Reagan 88, Bush I 79, Clinton 73, Bush II 71) while district court nominees have remained fairly steady and high (Carter 91 percent, Reagan 94, Bush I 79, Clinton 87, Bush II 92).

When comparing Clinton, Bush II and Obama’s first two years, some interesting differences emerge. Clinton inherited 17 circuit court vacancies, nominated 22 candidates, had 19 confirmations, resulting in 16 vacancies when the Senate adjourned. Under Bush II, those numbers are 27 vacancies, 31 nominees, 16 confirmations and 25 remaining vacancies. For Obama, it’s 13 vacancies, 25 nominations, 16 confirmations and 16 remaining vacancies. Clinton and Bush II reduced their vacancies slightly, while Obama saw them increase.

For district court vacancies, there’s an even bigger discrepancy. Again, during the first two years, Clinton inherited 90 vacancies, nominated 118, confirmed 107, with 52 remaining vacancies. For Bush II: 54 vacancies, 98 nominations, 83 confirmations, and 35 remaining vacancies. Under Obama: 41 vacancies, 78 nominations, 44 confirmations, and 76 remaining vacancies. Clinton reduced the vacancies he inherited by 42 percent, Bush II by 35 percent. Obama saw the vacancies increase by 85 percent.

Wheeler noted:

That Obama got even the district confirmations he did, moreover, was due to the lame duck session. Confirmations don’t stop on July 1 of election years, even if they become more difficult. 47 of Clinton’s 107 district confirmations came in August through October 1994.

The 2002 107th lame duck Democratic Senate, with a switch in party control looming, confirmed 17 Bush district nominees. The 2010 111th lame duck Senate confirmed 14 Obama district nominees. But different things were going on. The lame duck 107th was mainly cleaning out relatively recent Bush nominations. The 17 Bush appointees it confirmed had waited on average 149 days for Senate action; only three had been nominated before June 2002. By contrast, Obama’s 14 lame duck district confirmations represented a deal to clean up mostly long-standing, non-controversial nominees. They waited on average 257 days for confirmation, and only one had been nominated after June 2010.

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Obama nominates Floyd for 4th Circuit

Today, President Obama nominated Henry F. Floyd, a federal judge from South Carolina, for the last open seat on the U.S. Court of Appeals for the 4th Circuit.

If confirmed, Floyd would be the fifth judge Obama has placed on the 4th Circuit, which has 15 seats total. The previous four were Andre M. Davis of Maryland, Barbara Milano Keenan of Virginia, James A. Wynn and Albert Diaz, both of North Carolina.

Here’s the White House’s press release:

WASHINGTON – Today, President Obama nominated Judge Henry F. Floyd for the United States Court of Appeals for the Fourth Circuit.

“Throughout his career, Henry Floyd has demonstrated unwavering integrity and a firm commitment to public service,” said President Obama.  “I am proud to nominate him to serve on the United States Court of Appeals.”

Judge Henry F. Floyd: Nominee for the United States Court of Appeals for the Fourth Circuit

Judge Henry F. Floyd is a distinguished jurist without over 18 years of judicial experience.  For the past seven years, he has served as a U.S. District Judge for the District of South Carolina.

Judge Floyd was born in Brevard, North Carolina, and moved to Pickens, South Carolina as a young child.  He received his B.A. in History from Wofford College in 1970, and his J.D. from the University of South Carolina School of Law in 1973.  While at Wofford, Judge Floyd joined the Reserve Officers Training Corps and was commissioned a Second Lieutenant in the United States Army, later achieving the rank of First Lieutenant.

In 1972, Judge Floyd was elected to the South Carolina House of Representatives and served until 1978.  He began his private law practice in 1973 with the formation of the firm of Floyd and Welmaker, P.A.  Five years later, the firm became Acker, Acker, Floyd & Welmaker, P.A., after it merged with another law firm.  While in private practice, Judge Floyd served as a Commissioner on the South Carolina Forestry Commission from 1979 to 1991 and was counsel for Pickens County from 1986 to 1992.  In 1992, Judge Floyd was elected by the South Carolina General Assembly to serve as a Circuit Court Judge for the Thirteenth Judicial Circuit and held that position until he joined the federal bench.

How the Senate can honor Judge John Roll

As the world now knows, Judge John M. Roll, Chief U.S. District Judge for Arizona, was among the six people murdered in Saturday’s shooting rampage in Tuscon. Although U.S. Marshals had placed Roll under 24-hour security for a month in 2009 following his ruling in a controversial civil case involving immigration, then as now a hot-button issue in Arizona, Roll does not appear to have been targeted by the alleged shooter, Jared Lee Loughner. “He was in the wrong place at the wrong time,” said Sheriff Clarence W. Dupnik of Pima County, Ariz., as reported in the New York Times.

Apparently, Judge Roll stopped by the event to thank Rep. Gabrielle Giffords, D-Ariz., for signing a letter sent to Judge Alex Kozinski, chief judge of the U.S. Circuit Court for the 9th Circuit, asking the appellate court to declare Roll’s district a judicial emergency, according to the Wall Street Journal. Districts along the U.S.-Mexico border are swamped with immigration cases, making them some of the busiest districts in the country.

Judge Roll called Ms. Giffords within the last couple of days to thank her for signing the letter; she mentioned she was doing a constituent event in the area where he lived so he decided to attend the event to thank her, according to Judge [Michael] Hawkins.

The letter signed by Rep. Giffords and Rep. Pastor, outlined the challenge Judge Roll faced in handling a growing caseload. “The District of Arizona is simply overworked and understaffed…Much of the District’s caseload is a direct result of the crisis at the U.S.-Mexico border. Judicial resources in the District of Arizona are simply unable to keep pace with this escalating crisis at the border.”

Roll, 63, was a husband, father and grandfather, and he spent his entire legal career in public service. And while he did not shy away from controversy, he was kind and cordial on the bench, the Times’ piece noted.

Richard M. Martinez, a lawyer who had appeared before Judge Roll more than a dozen times over the years, said he admired how Judge Roll had appeared unshaken by the death threats over the rancher case.

“His commitment to making the right decisions as he saw them, to the point of putting himself at risk, was a reflection of who he was and how he acted as a judge,” Mr. Martinez said.

In the courtroom, Judge Roll was formal, civil and fair, Mr. Martinez said. “Even when he ruled against you, more often than not it was hard to argue against the decision he made,” he said. “You got a fair day in court, and that’s all you can ask for.”

Writing for The Atlantic, Andrew Cohen stressed the importance of understanding Roll’s ruling in the immigration case, and praised the judge’s fairness and courage in the face of hateful threats and vitriol.

In the aforementioned lawsuit, which came to a head in 2009, Judge Roll did precisely what federal judges are supposed to do–apply the law neutrally, treat the poor and dispossessed no worse and no better than the rich and powerful, and seek to dispense a measure of justice without fear or favor. As a result of his courage, his application of the law in circumstances he knew would be unpopular among Arizona’s loudest activists, Judge Roll was threatened with death, both privately and publicly. He and his family needed round-the-clock security from federal agents.

Here’s how Judge Kozinski and others recalled him:

“Judge Roll was a widely respected jurist, a strong and able leader of his court, and a kind, courteous and sincere gentleman. He worked tirelessly to improve the delivery of justice to the people of Arizona. He was always upbeat, optimistic, enthusiastic and positive in his outlook. He touched many lives and will be sorely missed by all who knew him – colleagues, court staff, members of the bar.”

Ninth Circuit Judge Mary M. Schroeder of Phoenix, a former chief judge of the circuit, said Judge Roll was respected and loved in both his professional and personal life.

“He was famous for being able to say so many genuinely nice things about people without having to consult notes, for he so genuinely loved people and had such a remarkable mind,” Judge Schroeder said. “Judge Roll will be greatly missed and will continue to provide inspiration for the generations of lawyers and judges who were fortunate enough to know him.”

Fair, neutral, civil, just, kind, courteous — by all accounts, Roll was exactly the kind of jurist America wants on the federal bench. But one thing really jumped out at me when I reviewed Roll’s biography: He was nominated by President George H.W. Bush on Sept. 23, 1991, and confirmed by the U.S. Senate on Nov. 22, 1991 — less than two months later.

That’s the way judicial confirmations are supposed to work. After consultation with the home state’s senators, the president nominates a candidate, the Senate Judiciary Committee gets to kick the tires, and if everyone agrees that the nominee is qualified — as was clearly the case with Judge Roll — then the candidate is quickly confirmed and put to work.

No secret holds. No hollow threats to filibuster. No cloture votes. No backroom wheeling and dealing to secure the necessary floor time for a vote.

Today, such an expeditious confirmation of a judicial nominee is unthinkable. Even noncontroversial candidates languish for months on end. Judge Roll’s inadvertently tragic advocacy to Rep. Giffords is a devastating reminder that our federal courts are suffering because of it.

While proclamations and heightened focus on judicial security are all well and good, the Senate can best honor Judge Roll by living up to its obligation to confirm qualified judges in a timely manner. This is not to say that every nominee should be fast-tracked, or that the Senate automatically sign off on whatever name the White House sends over. If a senator has a genuine issue with a particular candidate, the lawmaker should make his or her position known by voting no. But when obviously qualified, non-controversial candidates are nominated, they should be confirmed without politically motivated delays. It’s that simple.

Thoughts on the (new) 4th Circuit

Thanks to Saturday’s confirmation of North Carolina Judge Albert Diaz, the U.S. Court of Appeals for the 4th Circuit now has 14 of its 15 seats filled, its highest complement of judges in years. I thought now would be a good time to check in with Carl Tobias, a law professor at the University of Richmond and an expert on the nomination process.

Obama’s four appointees have changed the makeup of the court, which now has nine judges who were nominated by Democratic presidents and five by Republican presidents. However, it’s too soon to conclude that the 4th Circuit, which has the reputation for being one of if not the most conservative Circuit Court in America, has shifted dramatically, he warned.

“I don’t think there’s much of a story in terms of a radical change in terms of the direction of the court,” Tobias told Sustained Outrage. “[The party of the nominating president] is a pretty crude instrument for measuring how people will vote on cases.”

All four — Diaz, James A. Wynn, Barbara Milano Keenan and Andre M. Davis — were already sitting judges, and it’s unlikely to expect any of them to depart wildly from their substantial judicial records, he said. Any shift is likely to be very incremental, but it’s too soon to draw any conclusions, he said.

“If you take their reputations, I think it’s clrea that the four of them are less conservative than the court was before. But how much so, I have no idea,” he said.

In two years, Obama has now placed more judges on the 4th Circuit than George W. Bush did during his eight years in office. Tobias said that the two president have varied in their approaches to filling the vacancies, with Bush holding steadfastly to his nominees who were suggested by the White House. In contrast, Obama has shown substantial deference to the home-state senators for each vacancy, making the Senate more willing to confirm his nominees, he said.

“Part of it was he was willing to listen to the senators, very much so,” he said. “It’s a lesson in how to successfully conduct judicial selection in the 4th Circuit.”

As it did under Bush and Bill Clinton, the number of judicial vacancies has soared over 100 during Obama’s first term. But unlike his immediate predecessors, Obama has not succeeded in quickly reducing that number from its peak, with the number of vacancies staying over 90 or so for the last 16 months, Tobias noted. It is this long period of many vacancies that has put such a strain on the federal court system, he said.

“There just hasn’t been a major dent in [the high number of vacancies], and that’s what’s troubling,” he said. The difference has been the loss of the tradition of confirming well-qualified, non-controversial district nominees.

“That tradition was honored forever, and I don’t think it is anymore. That has contributed substantially to what we’re seeing now,” he said.

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Senate confirms Diaz

The U.S. Circuit Court of Appeals for the 4th Circuit has a new judge. Today the Senate unanimously confirmed Albert Diaz, 50, of North Carolina, making him the first Latino in the court’s history.

Diaz’ nomination had been pending since Jan. 28, which had been the longest active wait of any of President Obama’s judicial nominees. Diaz’ confirmation means that the 15-seat panel, which sits in Richmond, now only has one vacancy. Four of the 14 judges (Diaz, James A. Wynn, Barbara Milano Keenan and Andre M. Davis) are Obama appointees.

A very busy Senate also took the time Saturday to hold a roll-call vote on Ellen Lipton Hollander, confirming her as a district judge for Maryland by a tally of 95-0. Sen. Joe Manchin, D-W.Va., was one of the five senators who didn’t participate in the vote.

Diaz becomes the 4th Circuit’s third judge from North Carolina, the biggest state in the court’s jurisdiction. Virginia has four judges on the panel, Maryland three, South Carolina two and West Virginia two (M. Blane Michael and Robert B. King, both Clinton appointees). The seat that is vacant was formerly occupied by Judge Karen J. Williams of South Carolina, who retired in July 2009.

Senate confirms four, but Diaz continues to wait

For the first time in over three months, the U.S. Senate confirmed four federal judges yesterday. The four confirmations — Catherine Eagles to serve on the District Court for the Middle District of North Carolina; Kimberly Mueller to serve on the District Court for the Eastern District of California; John Gibney to serve on the District Court for the Eastern District of Virginia; and James Bredar to serve on the District Court for the District of Maryland — represented the district court nominees who had passed unanimously out of committee with the longest wait for a vote.

“These confirmations are long overdue.  For months, these nominations have languished before the Senate, without explanation and for no reason. Today, we confirm them unanimously. These confirmations will help fill a few of the judicial vacancies around the country, which have reached historically high levels. I hope these are the first of many confirmations by the Senate before we adjourn,” said Judiciary Committee Chairman Patrick Leahy (D-Vt.).

Through his spokeswoman, Senate Majority Leader Harry Reid (D-Nev.) called the confirmations “just a start.”

Eagles and Dibney passed out of committee on May 6. They had a long wait. But Albert Diaz (pictured above), a North Carolina judge up for a seat on the U.S. Court of Appeals for the 4th Circuit, passed unanimously out of committee on Jan. 28. He was nominated by President Obama over a year ago.

Including Diaz, there are still 34 nominees awaiting Senate votes, 19 of whom passed out of committee unanimously.

Earlier this week, the New York Times editorial board took the Senate Republicans to task for their relentless obstructionism.

The Senate’s power to advise and consent on federal judicial nominations was intended as a check against sorely deficient presidential choices. It is not a license to exercise partisan influence over these vital jobs by blocking confirmation of entire slates of well-qualified nominees offered by a president of the opposite party.

Nevertheless, at a time when an uncommonly high number of judicial vacancies is threatening the sound functioning of the nation’s courts, Senate Republicans are persisting in playing an obstructionist game. (These, by the way, are the same Senate Republicans who threatened to ban filibusters if they did not get an up-or-down vote on every one of President George W. Bush’s nominees, including some highly problematic ones.)

Because of Republican delaying tactics, qualified Obama nominees who have been reported out of the Judiciary Committee have been consigned to spend needless weeks and months in limbo, waiting for a vote from the full Senate.

Senate Republicans seek to pin blame for the abysmal pace of filling judicial vacancies on President Obama’s slowness in making nominations. And, no question, Mr. Obama’s laggard performance in this sphere is a contributing factor. Currently, there are 50 circuit and district court vacancies for which Obama has made no nomination. But that hardly explains away the Republicans’ pattern of delay over the past two years on existing nominees, or the fact that Senate Republicans have consented to a vote on only a single judicial nomination since Congress returned from its August recess.

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