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The Hapless Toad
The Atlantic Monthly; May 2005 (pp.48-50)

Environmental issues are the exception to liberals' "mostly hype" scare talk about President Bush's naming new Supreme Court justices. That is Washington Post editorial writer Benjamin Wittes' conclusion in an Atlantic Monthly magazine piece arguing that liberals "in almost all areas ... dramatically overstate the stakes." When it comes to environmental issues, he writes, "the stakes are truly immense and they dramatically understate them." Forget about abortion, civil rights, criminal law and other issues often portrayed as being at stake, Wittes concludes. When it comes to environmental issues, "the threat to basic protections from conservative jurisprudence is broad-based and severe." He argues that conservative judges' paring back of the Constitution's commerce clause poses dangers in particular for environmental statutes, because they are less "firmly rooted" than laws in other areas. Courts' narrowing definitions on issues of "takings," "just compensation," and plaintiffs' "standing" to sue are also taking a toll, he writes.

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April 2005