Back on March 3, in my blog "Law and Economics in TRO-Land" I criticized Congressman John Conyers' suggestion that certiorari should be sought to review the DC Circuit's TRO decision because, in his view, the court "is out of touch with mainstream economic concerns." Although I'm sure I disagree with Conyers' views on economics, I pointed out there that what is important in considering whether to seek cert is whether the court's interpretation of the 1996 Act is correct. The court doesn't sit to make economic policy.
Now comes the March 15 "Dear John" letter from Senators Stevens, Burns, Hollings, and Inouye, urging Attorney General Ashcroft to seek cert. It is principally devoted to arguing that, in the Senators' view, the DC Circuit decision will have an adverse impact on consumers and jobs. I disagree, of course. Unfortunately, the reality is that--until the FCC's UNE rules are scaled back--many more forests will be decimated as various parties debate the impact of the current unlimited unbundling regime.
With all due respect, what strikes me as especially odd about the Senators' letter is that to the extent it refers to the law at all, it cites Section 251(d)(3), ignoring completely Section 251(d)(2), the "impairment" standard provision that is at the heart of the DC Circuit's decision. [The court held that the states' challenge to the premptive scope of Section 251(d)(3) was not ripe for decision.]
Ultimately, arguments about whether the Supreme Court should be asked to grant cert must be grounded at least to a large extent in the law, and the law that actually was at the core of the DC Circuit's decision, the provision containing the "impairment" standard. Arguments like the ones contained in the Senators' letter are enough to send the Attorney General back to the hospital with another gallstone!