- The issue is arcane, but the consequences are huge. It’s a case study of how the Senate Republican minority’s abuse of the filibuster to block appointees, and the failure to fill vacancies on what is often described as the nation’s second highest court combined to produce potentially disastrous consequences.Hundreds of decisions by the National Labor Relations Board (NLRB) could be invalidated and the entire agency effectively shut down if a ruling by three Republican appointees to the U.S. Court of Appeals for the District of Columbia Circuit is upheld by the U.S. Supreme Court.The decision involves three appointees to the NLRB, a referee for disputes in the American workplace whose power extends beyond unionized workplaces. The five-member NLRB board can’t function without at least three vacancies filled. But for months Senate Republicans blocked three nominations by President Obama.Finally, the president resorted to what is known as a “recess appointment” – naming his nominees to the NLRB while the Senate was away for the holidays. But Republicans used a technicality to try to pretend the Senate still was in session: Every few days someone would stop by the near-empty Senate chamber, declare the Senate “in session” and then promptly declare the session over.This sham was good enough for three Republican-appointed D.C. Circuit judges. Ignoring longstanding practice and precedent, they ruled that the recess appointments were unconstitutional. Moreover, the ruling could invalidate all the decisions made by those three recess appointees over the last year.But wait, there’s more: Since one seat on the NLRB already is vacant that means, if the decision is upheld, the NLRB will have only one member. As so long as it doesn’t have 3 members, it can’t function at all.And still more: Richard Corday, who heads the Consumer Financial Protection Board, was appointed the same way. That happened after Senate Republicans first made clear they would never allow a vote on President Obama’s first choice, Elizabeth Warren (a decision they may now regret, given the job she ultimately got instead) and then stalled the nomination of Cordray. A separate case is challenging the Cordray appointment.None of this should come as any surprise. Last October, Pulitzer-prize winner Steven Pearlstein, then a columnist for The Washington Post, blasted the D.C. Circuit for its extreme right-wing activism.He wrote:…[D]ysfunctional government has become the strategic goal of the radical fringe that has taken over the Republican party. After all, a government that can’t accomplish anything is a government that nobody will like, nobody will pay for and nobody will want to work for. For tea party conservatives, what could be better than that?Nowhere has this strategy been pursued with more fervor, or more success, than the U.S. Court of Appeals for the District of Columbia Circuit, where a new breed of activist judges are waging a determined and largely successful war on federal regulatory agencies.It didn’t have to be this way. As Pearlstein also pointed out:The prospect that some balance might be restored to the nation’s second-most powerful court has long since faded after Senate Republicans successfully filibustered every nominee put forward by President Obama for the three vacant seats on the D.C. Circuit.That was then. Soon there will be four vacant seats.Here’s why that matters: The 11-member D.C. Circuit currently has eight active members—five Republican appointees and three Democratic appointees—and, as noted above, three vacancies (the fourth vacancy will occur on February 12th). If the president had been able to nominate and confirm three people to fill the vacancies, the Court would have had a Democratic majority. That means either the panel decision could have been different or the entire eleven-member court may have been more likely to review the panel’s decision – with a six-to-five majority appointed by Democratic presidents. But since that didn’t happen, Pearlstein wrote, there was only one other alternative:The only hope now is that Chief Judge David Sentelle and some of the court’s more intellectually honest conservatives will move to rein in the judicial radicals before they turn the courts into just another dysfunctional branch of a dysfunctional government.Guess who wrote the decision in the NLRB case: David Sentelle.
- WASHINGTON, D.C., January 24, 2013 — Alliance for Justice President Nan Aron issued the following statement on today’s agreement concerning reforming the rules of the United States Senate:Today’s agreement to enact incremental reforms to Senate rules, while containing some provisions that may prove to be of significant value in mitigating the calamitous mistreatment of judicial nominations, does not go as far as we would like in the direction of meaningful change on the broader issues confronting our country.While we are particularly happy to see long-overdue changes to the rules governing filibusters of district court nominees, we remain disappointed that circuit court nominations remain subject to the kind of destructive obstruction that has characterized President Obama’s first term. Limiting post-cloture debate to two hours serves as an implicit acknowledgement of the unprecedented degree to which Republicans have inappropriately used procedural weapons to delay and derail these important nominations. This agreement holds out hope that some degree of comity may now return to the Senate for district court nominees, but at the same time we urge Senate leaders to use every tool at their disposal to prevent the widespread obstruction of circuit court nominees that has characterized the past four years.Although we had hoped for a more robust package, we are encouraged by the spirit of reform and activism led by Sens. Jeff Merkley, Tom Udall, and Tom Harkin, carried forward by dozens of organizations, and given voice by hundreds of thousands of Americans, hungry for progress, who contacted their senators to demand change. The American people deserve a Senate that is willing and able to tackle the great issues that confront the nation, and we will watch diligently in the days ahead to see whether today’s agreement is sufficient to ensure that is the case.
- Will the Supreme Court help America complete its journey– or throw obstacles in the way?When President Obama gave his second inaugural address Monday, it’s estimated that one million people gathered on the National Mall to hear him. Tens of millions more heard the speech on television, radio or online.But there also was a much more select audience – an audience of nine, seated just a few feet from the president. Because several issues the president raised will be profoundly affected by actions of the United States Supreme Court, in some cases, within the next few months.The president said:Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law, for if we are truly created equal, then surely the love we commit to one another must be equal, as well.And, in marking civil rights landmarks, the President pointedly included “Stonewall” along with Seneca Falls and Selma.The Supreme Court can speed the journey, by voting to strike down the so-called Defense of Marriage Act, and upholding the ruling by the 9th Circuit Court of Appeals that California’s Proposition 8 is unconstitutional. Or the court can make it a much longer, more tortuous journey by upholding discrimination.The president said:We the people declare today that the most evident of truth that all of us are created equal — is the star that guides us still; just as it guided our forebears through Seneca Falls and Selma and Stonewall; just as it guided all those men and women, sung and unsung, who left footprints along this great mall, to hear a preacher say that we cannot walk alone; to hear a King proclaim that our individual freedom is inextricably bound to the freedom of every soul on Earth.And he said:Our journey is not complete until no citizen is forced to wait for hours to exercise the right to vote.The famous march from Selma to Montgomery was a march for the right to vote – a right won with passage of the Voting Rights Act of 1965. But now, a challenge to a key provision of that law could significantly setback the progress won by Dr. King and those who marched with him.The president said:Together we discovered that a free market only thrives when there are rules to ensure competition and fair play.But over and over again, the Supreme Court majority has bent those rules to favor corporate special interests at the expense of the rest of us, something documented in detail in our First Monday documentary, Unequal Justice.This term, the Court may bend the rules again, when it returns to the issue of forced arbitration in the case of American Express Co. v. Italian Colors Restaurant.And, of course, the president alluded to the tragedy of gun violence:Our journey is not complete until all our children, from the streets of Detroit to the hills of Appalachia to the quiet lanes of Newtown, know that they are cared for and cherished and always safe from harm.The Supreme Court already has made that part of the journey more difficult. The right-wing activist majority radically reinterpreted the Second Amendment, discovering an individual right to bear arms where none existed before.
Chief Justice John Roberts administers the Oath of Office–White House photoBut even Justice Antonin Scalia did not close the door to all regulation of guns. And whatever Congress may do in response to the Newtown tragedy, the Supreme Court may well have the final word.That’s why something President Obama did not mention is at least as important as all of the subjects he raised in an excellent inaugural address: the need for a progressive judiciary – on our federal district courts, on our circuit courts of appeals and on the United States Supreme Court.
In 2006, two years before he ran for president, then-Senator Barack Obama sat down with Alliance for Justice for an interview. It was part of our First Monday documentary, “Quiet Revolution.” Now, as President Obama begins for his second term, we present excerpts from that interview: