A Senate Republican Goal: Keep the D.C. Circuit Business Friendly

May 8, 2013

by Jeremy Leaming

While the Obama administration has done much to diversify the federal bench, Senate Republicans have so far successfully kept one of the nation’s most important appellate courts free of any diversity. The U.S. Court of Appeals for the District of Columbia Circuit rules on significant and often complex matters, including national security concerns; but it also rules on matters that are of great concern to corporate America.

Since the Republican Party is the primary coddler of the super wealthy, it’s hardly surprising that its leaders in the Senate are working feverishly to ensure that President Obama has little if any opportunity to change the ideological makeup of the D.C. Circuit. The graphic (right) produced by People For The American Way is a compelling and accessible picture of the matter. (Senate Judiciary Committee Ranking Member Chuck Grassley is also pushing legislation that would cut the number of judges on the bench; he claims the D.C. Circuit has enough judges and a light caseload. For the truth, read retired D.C. Circuit Chief Judge Patricia Wald’s piece for The Washington Post.)  

For many years now, the D.C. Circuit has been controlled by conservative judges. There are four vacancies on the bench and Senate Republicans have successfully blocked the president from filling them. As Miranda notes in a PFAW blog post, because of Senate obstructionism Obama is the “first president since Woodrow Wilson to serve a full first term without placing a judge on the D.C. Circuit.”

An opinion yesterday by a three-judge panel of the D.C. Circuit provides yet another example of the Court’s pro-business tilt. It knocked down a rule by the National Labor Relations Board (NLRB) requiring employers to post notices about the rights of workers, such as joining a union or advocating for safer working conditions. In a post for AFL-CIO NOW, Mike Hall calls the NLRB rule “commonsense and evenhanded,” noting that such notices also inform workers that they do not have to join a union. But the D.C. Circuit found a way to side with corporations that aren’t especially eager to inform workers of their rights pursuant to the National Labor Relations Act.

That opinion follows one from earlier in the year, Canning v. NLRB, where the D.C. Circuit invalidated the president’s appointments to the five-member NLRB. That opinion has been appealed by the Obama administration. In short, the three-judge panel of the D.C. Circuit essentially redefined what a recess appointment is, one that differs greatly from practice and federal court precedent. (See Sec. 2 of Article II of the U.S. Constitution.)

The D.C. Circuit has also proven hostile to environmental regulations that are often challenged by corporations. In a post for grist, the Constitutional Accountability Center’s Simon Lazarus and Doug Kendall say the D.C. Circuit, on “any given day … has the power to throw the environmental movement into complete disarray.” (They could have added to the great delight of many corporations or the Koch brothers.)

But the point the CAC lawyers make is that the concerted effort by Senate Republicans to keep one of the nation’s most powerful appellate courts – one that can issue make-or-break decisions on federal regulations – in the hands of right-wing jurists is detrimental to protecting the environment. Simon and Kendall conclude, in part, that it “is time for the environmental movement to involve itself more in the conversation about nominees.” The environmental movement, they note, needs “judges who will follow the protective mandates of the statutes passed by Congress.” 

There are many reasons why progressives should be much more engaged on the make-up of the federal bench -- see our “Courts Matter” paper, for some of those reasons. And regardless of what elite beltway reporters tell us, the Republican Party has grown increasingly laser-focused on protecting the nation’s corporations, and at the moment it has a very important federal court on its side. This is not the typical story of dysfunctional Washington; it’s about the growing extremism of the Republican Party.