Is the Administration Waging a Media War Against the D.C. Circuit?

Hours before President Obama won reelection yesterday, the Wall Street Journal accused his administration of trying to intimidate the D.C. Circuit through the press. Here is an excerpt:

Federal regulators have been watching in horror as some of their best-laid rules are overturned in court. You might think the sensible response would be to rewrite those rules to comport with the law. Instead, they’ve launched a campaign to blame and stigmatize the judicial referees.

In recent weeks, liberal journalists have unleashed a remarkable assault on the D.C. Circuit Court of Appeals, the nation’s leading appellate court for legal challenges to new regulation. This is the court that produced Supreme Court Justices Antonin Scalia, Clarence Thomas, Stephen Breyer and Ruth Bader Ginsburg, and its 13 judges are hearing challenges to the rule-makings for Dodd-Frank and by the Environmental Protection Agency, among others.

Columnists and reporters for the Washington Post and New York Times have led the charge, which in Washington doesn’t happen by spontaneous combustion any more than the attack in Benghazi did. These writers almost certainly are listening to sources in the bureaucracy who don’t want to criticize the judiciary themselves so they find someone else to do it. . . .

A judge who now has senior status on the D.C. Circuit, Laurence Silberman, once wrote a famous article about “the Greenhouse effect” that New York Times reporter Linda Greenhouse had on the Supreme Court. For years she skewed her reporting to portray conservative judicial opinions as radical or out of the mainstream while praising GOP appointees such as John Paul Stevens and David Souter who went over to the other side. As a political matter, it succeeded.

The stakes are nearly as high at the D.C. Circuit, which provides the only check on the burgeoning regulatory state. Congress tends increasingly to write ambiguous laws, precisely to give regulators the discretion to impose far-reaching costs on the economy without the legislators having to take responsibility for the vote.

The judiciary has a legal duty to make sure these rules follow the law, both statutory and constitutional, and don’t trample on other rights. Let’s hope the D.C. Circuit judges ignore the liberal intimidation campaign and stick to the law.

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