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The missing judge

Last modified: 8/31/2012 12:00:00 AM

But for one thing, the conclusion of the Monitor's Aug. 24 editorial, ''Court ruling keeps the poison coming,'' that the Environmental Protection Agency ''should appeal the panel's decision to the full nine-member court,'' would be correct.

Last December, however, Republican senators, including New Hampshire's Kelly Ayotte, filibustered Caitlin Halligan, President Obama's nominee to fill the D.C. Circuit's ninth seat.

As a result, the court still has three vacancies and only eight active judges. An appeal to the full court would require that five judges vote to review the 2-1 panel decision that overturned safeguards against air pollution from upwind states.

The editorial noted that ''Judge Brett Kavanaugh wrote (the majority) opinion joined by Judge Thomas Griffith. Both men were appointed by President George W. Bush; the dissenting judge was appointed by President Bill Clinton.''

Three of the four Bush judges the Senate confirmed to the D.C. Circuit continue on the court, including a member of the panel majority who filled the court's 11th seat.


Washington, D.C.

(The writer is a staff attorney for the Judging the Environment judicial nominations project at the Defenders of Wildlife.)'


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