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Newsletter | August 18, 2021

Who’s Afraid of Brett Kavanaugh’s Scorn?

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Who’s Afraid of Brett Kavanaugh’s Scorn?

Newsletter 91: A bold regulatory agenda will require some bravery at DOJ

The U.S. Court of Appeals is set to rule on the Biden Administration’s eviction moratorium sometime this week. No matter how it decides, however, it is already clear that those who argued against a new moratorium were wrong. A Trump judge has acknowledged that she must, begrudgingly, sustain it for now. By fighting, rather than preemptively surrendering, the administration has ensured that millions of Americans can stay in their homes for weeks longer. That is undoubtedly worth any embarrassment that government lawyers may feel from potentially eventually losing a case.  

So who were these lawyers who feared Brett Kavanaugh’s scorn more than they cared about keeping people in their homes? Public reporting has identified a couple of them — White House Counsel Dana Remus, for example — but it is almost certainly incomplete. It would be exceptionally unusual for senior DOJ officials, including Attorney General Merrick Garland and then-Acting Solicitor General Elizabeth Prelogar (among others), not to have weighed in here. Given what we know of their records at DOJ and prior, there’s every reason to believe that they would have prioritized their own reputations within the legal establishment over what’s right. 

Disturbingly, one of them — Elizabeth Prelogar — has just been nominated to permanently fill the role of Solicitor General. If you’ve been following our work this year, you know that we were not fans even before the eviction moratorium clash. Setting aside her record at Cooley, where she earned two million dollars last year representing such clients as Facebook, Uber, Twitter, and Amgen, as acting Solicitor General Prelogar has repeatedly demonstrated far too much deference to harmful institutional norms/Trump Administration positions. Pointing to longstanding DOJ practice, Prelogar’s office has argued in favor of qualified immunity for police officers, denying Social Security benefits to Puerto Ricans, a natural gas pipeline in New Jersey, denying thousands of asylees access to a permanent pathway to citizenship, and more. 

This approach is consistent with that of Attorney General Garland, for whom Prelogar once clerked and thanks to whom she is currently in this role. The Biden White House had reportedly been looking elsewhere for a permanent candidate, to figures like Sherilynn Ifill and Leondra Kruger. Given those options, it’s puzzling that Garland ultimately prevailed in getting his pick in place. Did the White House, overwhelmed with personnel choices, simply defer to get this decision off its plate?

It certainly seems plausible. And if that’s the case, that has us worried that it could happen again. Specifically, we’re concerned that the administration might nominate Brian Boynton to permanently lead the Civil Division after Biden’s original (very solid) nominee, Javier Guzman, withdrew. Boynton’s main qualifications consist of a long career at WilmerHale and a vanishingly brief stint in the Obama Justice Department. He has an astonishingly large number of conflicts of interest, even when compared to other BigLaw partners. Since joining the DOJ in January, he’s defended Trump in the E. Jean Carroll case, attempted to block efforts to get former Education Secretary Betsy DeVos to testify in a lawsuit over student loan forgiveness, and defended numerous policies leftover from DeVos’ education department.

The head of the Civil Division oversees a staff of over 1000 people and has responsibility over cases across the country that span almost every issue area. Whoever Biden picks will help determine the scope and endurance of the President’s agenda. He can and must do better than Boynton. 

Personnel

Unfortunately, if we look at other recent appointments, we can see that egregious conflicts of interest and a horrible track record are not always disqualifying. Despite having both of those things in spades, former fossil fuel executive Amos Hochstein was named a senior adviser for energy policy just hours after the International Planet on Climate Change released a report finding that the planet is locked into 1.5 degrees of warning. He will initially be responsible for negotiations over Russia’s Nord Stream 2 pipeline before he takes on “a broader global energy role in the Biden administration.” For the American Prospect last week, Max Moran detailed why Hochstein is the last person you want anywhere near global energy policy. Even today, with all we know, “Hochstein is not even a skeptic of the fossil fuel industry, much less an environmentalist. His life’s work has been planting American flags on global fossil fuel reserves, facilitating the drilling and pumping of their contents, and inflicting pain on anyone who gets in the way.”

Unfortunately, this appointment is just one in a series of recent decisions that is calling into question the strength of this administration’s climate commitments. A few of those — like the White House asking OPEC+ to produce more oil to lower gas prices — have garnered significant attention. Others — like some troubling recent nominations to the Federal Retirement Thrift Investment Board (FRTIB), which controls federal employees’ retirement funds — have flown under the radar. Many had been hoping for a slate of nominees ready to use the board’s power to divest those funds from fossil fuels, which research suggests would benefit federal retirees and the planet. Unfortunately, it’s far from clear that that’s what we got. Dorothy Slater has more about the nominees, including those hailing from Morgan Stanley and a speculative investment firm, on the blog

In a separate piece, Dorothy also brings our attention once again to the missing nomination to lead the Office of Information and Regulatory Affairs (OIRA) and the troubling implications of this extended delay. Sadly, even if Biden were to nominate someone today, we’ll still likely have to wait months before that official is in place to actually begin implementing reforms. Republicans continue to use procedural maneuvers to slow down the Senate confirmation process by forcing “debate” over nominations. Most notably, Senator Ted Cruz is blocking virtually all of Biden’s State Department nominees in this way. At least in part due to Cruz and others’ antics, Biden has had far fewer nominees confirmed than Bush and Obama at the same point in their first terms. 

With only 88 appointees confirmed so far, he’s not even on track to have a full team of Senate-confirmed appointees (approximately 1200 people) approved by the end of four years in office. Simply put, this situation is not sustainable. As we have argued repeatedly, Senate Democrats need to change the rules to stop Republicans from holding the Senate confirmation process hostage. We urge progressive allies to join us in elevating this fight and the media to acknowledge that while McConnell running roughshod over hapless Democrats may not be new, it is nevertheless highly consequential news.

Governance

When it comes to the federal workforce, President Biden has promised to be Trump’s opposite. He has repeatedly emphasized his respect for federal workers and his administration has taken at least some concrete steps towards rebuilding gutted agencies. While we would still like to see these efforts move much faster, we have had relatively little reason to criticize the administration’s overall direction. That is, until we learned that the infrastructure bill passed by the Senate creates a new agency within the Department of Transportation (DOT) whose workforce would lack job protections, including from retaliation against whistleblowing. This, along with easier hiring, is meant to help the agency — a sort of think tank for infrastructure issues — avoid some of the problems that have plagued federal hiring elsewhere. It should be clear after four years of Trump, however, that removing measures that protect federal workers from political appointees’ whims is a dangerous proposition. In fact, Biden himself condemned a similar effort just a few months ago when he rescinded Trump’s schedule F executive order. Those dangers were apparently lost on Secretary of Transportation Pete Buttigieg, in whose Department the plan reportedly originated.

This set up is also reflective of outdated and largely unsupported thinking about the problems facing the federal workforce. For years, efforts at reform focused on making it easier to fire federal workers (with notably little evidence indicating how this might help), while ignoring many of the other structural problems facing the federal workforce. Until now, the Biden administration had largely avoided falling into this old pattern. To its credit, following outcry from federal unions, the White House quickly threw its support behind a fix. 

Hopefully Buttigieg will learn from the mess (we hope to have the capacity to monitor DOT closely!) and the fix will be inserted into the House version of the bill. 

Independent agencies 

It’s now been almost two months since a seat became available on the Federal Energy Regulatory Commission. Yet, there is still no nominee. Earlier this month, almost 500 groups called on Biden to nominate an environmental and energy justice champion to the role and named three potential candidates. There’s really no excuse for further delays here. 

Biden should also move quickly to nominate two new governors to the Postal Board of Governors. By naming two Democrats, one to fill Ron Bloom’s expired seat and one for John Barger’s soon-to-be-expired seat, Biden may finally have a majority willing to fire Postmaster General Louis DeJoy, as Vishal Shankar details in a new blog

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