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The Corporate Courts: Fifth Circuit Judges Are Marinating in Oil

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Thanks in part to Elena Kagan's confirmation hearing, a great deal of long-overdue attention has been focused on the strong corporate bias in the current Supreme Court. But the Corporate Court is just the tip of the iceberg when it comes to special interest influence in the judicial branch. Industry ties and real or perceived conflicts extend down into all levels of the federal judiciary, including the district courts and the courts of appeals. (State courts are another equally disturbing story.)

Not surprisingly, the calamity in the Gulf of Mexico is providing a perfect case study in what's gone wrong in the federal judiciary. Gulf Coast wetlands aren't the only environments being coated with slime; the judicial system is starting to get an oily sheen, as well.

There have been widespread reports of oil industry connections and financial conflicts among many, if not most, Fifth and Eleventh Circuit judges. So many judges are taking themselves out of the game because of personal conflicts that it's questionable whether the Fifth Circuit could field a golf foursome, let alone a functioning appellate panel to hear cases. Actually, that's no joke. In early June, so many judges had to recuse themselves in a case called Comer v. Murphy Oil USA that the en banc panel couldn't get a quorum, resulting in the reinstatement of a district court verdict that favored (surprise!) the oil industry.

And on June 22, Judge Martin Feldman of the Eastern District of Louisiana issued a controversial ruling suspending the Obama Administration's six-month moratorium on deepwater offshore drilling. Judge Feldman was revealed to have been a long-time investor in the oil and gas industries, Transocean included, and sold his Exxon stock on the very morning he issued his ruling in a somewhat strained effort to avoid the appearance of a conflict of interest. He is also reported to have been heavily invested in BlackRock Financial, the largest single shareholder in BP.

To the surprise of absolutely no one, Judge Feldman, who refused to recuse himself, issued a ruling that favors the oil industry. It's a questionable, perhaps tainted, decision, but that's what appeals courts are for, right? Alas, the case was assigned to a three-judge panel in the Fifth Circuit, comprised of Judges Jerry Edwin Smith, William Eugene Davis, and James L. Dennis. Sadly, as the song says, here we go again.

Alliance for Justice has issued a report, "Judicial Gusher: The Fifth Circuit's Ties to Oil," detailing the extensive connections between these three judges and their Fifth Circuit brethren and the oil and gas industry. This is a circuit, along with the adjacent Eleventh, in which many of its jurists have spent their careers marinating in the world of Big Oil.

Most media reports on Gulf Coast judges have focused on their investments and financial ties, of which there are many, but there is more to the story. Judges Smith and Davis had long careers in private practice before being nominated to the federal bench by President Reagan. Their specialty was ... wait for it ... representing oil and gas companies. Smith and Davis have also attended so-called "seminars" sponsored by the Foundation for Research on Economics and the Environment (FREE), whose purpose is to promote free-market solutions to environmental problems and to "explain why ecological values are not the only important ones." Lest you think these seminars are held in dreary hotel rooms with droning speakers, you'll be relieved to know these all-expense-paid junkets are held in Big Sky, Montana, where these information-hungry jurists can be intellectually stimulated while horseback riding and playing golf -- all courtesy of corporate sponsors like Exxon Mobil.

Of course a lot of the industry ties are financial in the old-fashioned sense. Judge Dennis, for instance, who was a Clinton appointee, has extensive holdings in the energy sector, with investments, according to his 2008 disclosures, in at least 18 companies. He was one of the judges on the panel in the Comer case, but, interestingly, was not one of the ones who recused himself. He's not doing it in the moratorium case, either.

What's at stake when corporations have undue influence in the courts -- or even just the perception of it? The first casualty, of course, is justice for victims, as the people of Alaska found out in the wake of the Exxon Valdez catastrophe, and the residents of the Gulf States are now discovering. In the current drilling moratorium case, the ability of the federal government to control the oil industry and protect the Gulf is on the line, to say nothing of the future of an entire ecosystem. But what's equally at risk is the integrity of the American judicial system itself.

Once the American people start believing the courts are no longer fair and impartial, but are mere adjuncts to corporate interests, our faith in justice is irreparably weakened. There are many oil-drenched casualties of the tragedy in the Gulf. It would be a shame if the integrity of the judicial system was one, as well.

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