THE BLOG
10/05/2016 03:55 pm ET Updated Oct 06, 2017

It's Not Just About The Supreme Court: Agency Appointments Matter Too In The Next Election

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It is abundantly clear that the 2016 Presidential election matters and most people point to the Supreme Court as the primary reason why. After all, the next president will likely nominate two or possibly three justices to the U.S. Supreme Court. The Court will play a crucial role on matters of race, abortion, disability rights, immigration and likely the environment and global warming.

However, too many have overlooked the crucial role of federal agencies, because it's not just the Supreme Court that matters for this election: many agencies will require appointments. Rather than just a few appointments, this could mean hundreds of individuals who could fill positions that actually have direct and profound impacts on people's lives.

For example, because appointments to federal agencies, such as the Food and Drug Administration ("FDA") can be and have been politicized, this can influence how drugs are labeled and when and how they come on the market; whether the Environmental Protection Agency ("EPA") will be staffed with leadership that acknowledges or rejects global warming or investigates tragedies such as the polluted water supply in Flint, Michigan; whether the Department of Justice ("DOJ") will investigate and pursue cases that impact the lives of vulnerable Americans such as police shootings of unarmed black men and women; and even how the Equal Employment Opportunity Commission ("EEOC"), an agency responsible for interpreting civil rights violations, embraces its charge.

If the next president is indifferent to women in the workplace, dismissive of individuals with disabilities, and shows a disregard for racial discrimination--don't expect the EEOC and its leadership to intervene--even though that's their job. When Justice Clarence Thomas served as the head of the EEOC (appointed by President Ronald Reagan), he led an organization responsible for tackling discrimination under an administration that showed indifference if not hostility to civil rights. Thomas came under criticism when it was discovered that under his leadership the statute of limitations in more than 10,000 age-discrimination complaints filed with the agency had lapsed. In just that instance, more than 10,000 lives were impacted--whether or not the cases would have been successful or not---the claimants never had the opportunity to find out.

Remember the slothful and by many accounts inept federal response to Hurricane Katrina? Look no further than Michael Brown, a former commissioner for the International Arabian Horse Association who was thought sufficiently qualified to handle national disasters. President George W. Bush appointed Brown to head the Federal Emergency Management Agency ("FEMA"), a body responsible for investigating and responding to natural and other disasters. Brown's lack of experience was so evident that he was fired shortly after Katrina, but not before almost 2,000 people died due to the storm. Brown's appointment reflected the cronyism in federal appointments.

Agency staff play a vital role in every aspect of American life. Not only do they follow the direction of the president and Congress, they also advise and shape regulations. When Paul Wolfowitz, the Deputy Secretary of Defense (2001-2005) claimed "weapons of mass destruction" were housed in Iraq, and testified before Congress that it was "hard to conceive that it would take more forces to provide stability in post-Saddam Iraq than it would take to conduct the war itself," lawmakers believed him. The U.S. went to war.

Moreover, there is a problematic revolving door between industry and agencies. Certainly, this matters in the aftermath of economic crises and banks' abuses of consumers. Will the next president appoint former bankers to police and investigate the industries where their friends still work?

In the reproductive context, an area that I write a lot about, much is at stake. If the next appointments to the FDA are hostile to reproductive rights, likely women's health will be directly impacted. For example, safe contraceptives can be delayed coming onto the market or inaccurately labeled in the process.

In 2009, U.S. District Court Judge Edward R. Korman issued a scathing opinion, pointing out how the FDA had blocked bringing Plan B--an emergency contraceptive often used in cases of rape--to the market for impermissible, ideological reasons during the Bush administration. He ruled that the FDA ignored science, favoring instead allowing politics to dictate its decisions in 2006 to limit access to over-the-counter emergency contraceptives to women over the age of eighteen.

In the opinion, Judge Korman wrote, "[t]he FDA repeatedly and unreasonably delayed issuing a decision on Plan B for suspect reasons." The judge called the FDA out for acting "arbitrary and capricious" and failing to show "good faith" in its decision-making. Despite women having a constitutional right to access contraception and abortion, the FDA's leadership at the time was openly opposed to abortion and many believe that played a role in delaying important contraceptives coming to the market.

So, while it's important that the Supreme Court uphold women's reproductive rights, in reality agencies can burden those rights under pretexts that that could last years before a challenge is brought in courts.

Who serves in the FDA and other agencies matters for other reasons. Courts will grant deference to agencies. This means that courts will generally accept an agency's interpretation of law. Beyond this, courts will often assume an agency's research and policy statements are rigorously researched, unbiased, and objective. Sadly, sometimes an agency's interpretation of law can be politically and ideologically motivated to the harm of many Americans.

The next big appointments by our president will not only be to the Supreme Court, but overlooked agencies that play vital roles in virtually every aspect of Americans' lives from food and water regulation and safety to influencing whether we go to war.