Thursday, July 8, 2010

Are the Wheels of Justice Greased in the Fifth Circuit?

The Obama Administration has appealed a federal district court ruling overturning its six-month moratorium on deep-sea oil drilling in the wake of the BP Deepwater oil spill. I previously blogged about that ruling here. The Financial Times is reporting (here) that the Fifth Circuit has refused to reinstate the moratorium while it considers the appeal. That is not particularly surprising, and I do not expect the Fifth Circuit to overturn the District Court's ruling. The Obama Administration has a weak case on the merits, which it tacitly acknowledged when it announced that it would be issuing a replacement moratorium based on stronger evidentiary support.

Another interesting aspect of the case, as it sits before the Fifth Circuit, is the continuing problem of potential judicial bias arising from financial interests individual judges have in the oil and gas industry. As noted in my previous post, Judge Feldman was substantially invested in that industry, including in some companies that stood to benefit from his ruling. The problem appears even worse on the Fifth Circuit where, according to this report by the Alliance for Justice, 14 of the 20 judges (including senior judges) hold substantial financial investments in oil and gas. Four judges have holdings worth millions of dollars; six others have oil and gas investments worth hundreds of thousands of dollars. In addition, all but a few judges on the Fifth Circuit represented oil and gas companies as attorneys before appointment to the bench. Can we really expect these judges to decide cases that might significantly affect their personal wealth without bias? If so, could someone please provide me with the theory that would support such an expectation of super-human judicial independence?

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