Climate Cowards

Federal judges are folding under political pressure from state AGs

Now, even judges are acting like cowards.

For a while there, they inspired us to believe that the center would hold against the Trump administration’s relentless lawbreaking. When law firms were extorted, scientific research defunded, immigrants deported illegally, or protestors gunned down dead, federal judges stood up, spoke out, and ruled the administration’s conduct “pernicious” and “cringe-worthy,” “arbitrary and capricious, and just “blatantly unconstitutional.” Most judges are inspiring us still.

Yet, last month, they folded. Not in a big way, not in way that attracted much attention, but in a manner that shows even they – our ostensible finders of fact and truth – can succumb to Trump’s harebrained war on knowledge.

Federal judges may act as if they know everything, but they need a lot of help. Take science. Probably few of them are schooled in science, let alone experts in it, yet many legal cases turn on arcane concepts of, say, physics or chemistry or engineering. So judges rely on lawyers and their experts to show them the ropes, but many also do their own research. That’s where the Reference Manual on Scientific Evidence comes in.

The manual is a collection of the best thinking on everything from DNA to neuroscience to engineering practices and methods. It has been around for more than 30 years, commissioned by the Federal Judicial Center – the research and education arm of the federal judiciary – and has gone through four editions. The most recent two were developed with the National Academy of Sciences, Engineering, and Medicine, which advises the nation on science and technology.

Not to belabor the point, but this is a top-notch resource. Its chapters are written by the nation’s premier experts, reviewed by a panel of equally qualified exerts, and, if those experts disagree – as they sometimes do – a third level of review resolves the dispute.

As one federal judge told me, “It’s like going to Einstein for a quicky on relativity.”

In the latest edition, a particular chapter has suddenly provoked an uproar. You can probably guess what the chapter is about: climate science.

At the end of January, 27 Republican state attorneys general – scientific luminaries like Ken “Vaccines Kill” Paxton of Texas and John “Coal Is Clean” McCuskey of West Virginia – sent U.S. District Judge Robin Rosenberg of Florida, the director of the Federal Judicial Center, a letter. It demanded that she and her organization retract the chapter, which acknowledges the existence of climate change, as “flawed,” “inappropriate,” and “putting the judiciary firmly on one side of some of the most hotly disputed questions in current litigation.” That side, presumably, is the wrong side.

On February 6, Judge Rosenberg gave her thoughtful response: OK!

The dispute didn’t end there, of course. On February 19, the AGs wrote a letter calling the National Academy’s refusal to erase the climate-science chapter from its website “unacceptable” and reminding the academy that it received taxpayer support. On February 27, congressional Democrats wrote a letter demanding that the Federal Judicial Center restore the chapter in its version of the manual. On March 2, twenty-eight experts who wrote other chapters in the manual published a letter lambasting the AGs’ first letter as “a direct challenge to the independence of the federal judiciary and an attack on a thoroughly vetted exposition of climate science that those attorneys general do not like.”

So many letters. Such an obvious solution.

More than just part of the judiciary, the Federal Judicial Center is run by judges – Chief Justice John Roberts at the top, seven judges with him on the board of directors, and one judge, Robin Rosenberg, running the place. Lest anyone need reminding, judges and the courts are the core of an independent branch of government. Yeah, it’s “the weakest branch” and funded by Congress and all that, but it should heed no master other than the law – and surely no politicians masquerading as lawyers at the head of state attorney general offices.

Hundreds of judges, on the political left and right, are reminding us every day of what that means, upholding the rule of law against this reckless administration and trying to call it to account – sometimes at the risk of their personal safety. What must they think of the appeasers on the bench?

There is only one correct resolution to this kerfuffle: Restore the climate chapter as the experts wrote it. And there is only one right answer to the AGs’ letter demanding its erasure, only one response that any judge worth her gavel would have given: Hell no.