In December, the Supreme Court is scheduled to hear an important case out of Mount Holly, New Jersey, that involves Fair Housing Act (FHA) claims in the context of an effort by Mount Holly Township to use eminent domain to redevelop its only predominately minority community – and in the process, displace and raze the homes of its residents. As such, the case raises an important test of whether conservatives hate eminent domain more than they detest civil rights statutes like the FHA that protect minority homeowners from unjustified disparate impact. The answer apparently is the latter.
As everyone knows, the property rights movement has led a crusade against eminent domain in the courts over the past decade, highlighted by the case of Kelo v. New London. While they lost Kelo, property rights groups such as the Institute for Justice and the Pacific Legal Foundation (PLF) have used public sentiment against the Kelo ruling to fuel ballot initiatives and legislation that have passed in whole or in part in 42 states. A critical talking point for leading groups in this crusade has been the impact that eminent domain can have on low-income and minority communities. This concern has activated some important groups on the Left. For example, the NAACP, the Southern Christian Leadership Conference, and other big names of the civil rights community filed briefs for the plaintiff in Kelo alongside the property rights groups.
It would seem, then, that something we could all agree on is that eminent domain should not be used as a tool for racial discrimination. That is precisely what is being alleged by the homeowners in the Mount Holly case, whose homes are slated to be demolished to make way for a planned community of significantly more expensive housing units with a tony-sounding name, “The Villages at Parker’s Mill.” They are seeking a court hearing on their claims under the FHA that the township is employing eminent domain in a way that unjustly disadvantages minority homeowners and residents.
After more than four years of obstructing President Obama’s judicial nominations and causing the vacancies on the federal bench to hover at or above 80, right-wing organizations are ratcheting up their efforts to re-write history. The Heritage Foundation, proclaims that no obstruction has occurred and that Obama is remaking the federal bench, but asks us to ignore what unfolded during his first term. The lesser-known Judicial Crisis Network (JCN) is out with a slideshow of 13 graphics that aims to support an effort of Republican senators to shrink the size of the U.S. Court of Appeals for the District of Columbia Circuit, where vacancies have languished for years on end.
Senate Judiciary Committee Ranking Member Chuck Grassley (R-Iowa) has long sought to chop seats from the D.C. Circuit, widely considered one of the most powerful federal appeals courts in the land, claiming it has a flimsy workload. Grassley and his fellow Republicans successfully kept Obama from filling one of the D.C. Circuit’s longstanding vacancies until the start of his second term. There are still three vacancies on the 11-member court.
When Obama announced three nominations to those vacancies earlier this year, Grassley introduced a bill aimed at cutting – you guessed it – three seats from the D.C. Circuit, arguing the Circuit’s current judges had light caseloads and there was no need for more judges. But as the Constitutional Accountability Center (CAC) and others have noted, Grassley’s claims about the D.C. Circuit ignore reality. The D.C. Circuit hears far more complex and constitutionally weighty matters than the other federal appeals court circuits.
The JCN is headed by Carrie Severino, an attorney devoted like the Tea Party to destroying health care reform and mild regulations (Dodd-Frank) of the financial industry. The group's “infographic” containing 13 slides purports to show that the D.C. Circuit “is the most underworked court in the country.” It is, as People For The American Way’s blog notes, a slideshow “recycling old, discredited arguments ….”
Earlier this year when Grassley launched his latest attempt to slash judgeships from the D.C. Circuit, he claimed, “No matter how you slice it, the D.C. Circuit ranks last or almost last in nearly every category that measures workload.” That statement caught the attention of The Washington Post’s “The Fact Checker,” which concluded it was deserving of “Two Pinocchios,” meaning it contained “significant omissions and/or exaggerations.”
To hear Ranking Senate Judiciary Committee member Sen. Chuck Grassley (R-Iowa) tell it, the Senate is not the chamber where noncontroversial judicial and executive branch nominees languish.
Yesterday when the Senate confirmed Gregory Phillips to a seat on the U.S. Court of Appeals for the Tenth Circuit, Grassley crowed in a press statement that “the Senate is processing the President’s nominees exceptionally fairly. President Obama is certainly being treated more fairly in the beginning of his second term than Senate Democrats treated President Bush in 2005. It is not clear to me how allowing more votes so far this year than President Bush got in an entire year amounts to ‘unprecedented delays and obstruction.’”
Grassley has long argued that there is no obstruction of judicial nominees in the Senate, that vacancies on the federal bench have remained high because the president has been slow to put forth nominees and that one of the most powerful federal appeals court circuits is not all that busy, so it should be stripped of three judgeships. All of these assertions are beyond wobbly, they’re intentionally misleading. Grassley’s arguments for yanking judgeships from the U.S. Court of Appeals for the District of Columbia Circuit are especially obnoxious, aimed at trying to ensure that the D.C. Circuit remains tilted to the right for as long as possible.
Despite the nominations that have been confirmed this year, there remain more than 80 vacancies on the federal bench, for a reason. Many of this year’s confirmations for example, should have happened in the previous Congress. Instead, the president’s judicial nominees have endured a significantly longer and divisive path to confirmation than Bush’s.
The Senate’s obstructionists, meaning the Republican caucus, are urging the U.S. Supreme Court to review and uphold a federal appeals court decision that greatly narrowed or rewrote the president’s power to make recess appointments.
And that’s not terribly surprising. The case involves vacant seats on the National Labor Relations Board, an agency that Senate Republicans have fought to keep business friendly or inoperative. Republicans have convinced themselves that the NLRB, which was created to protect both rights of workers and employers, is all about making life tough on corporate America. The Senate Republicans are of course deluded, but consistent in their support of the powerful. (The Supreme Court could decide this summer to take the case for review.)
In January, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit in Noel Canning v. NLRB held that President Obama ran afoul the Constitution when he appointed Sharon Block and Richard Griffin to vacant seats on the five-member agency during a 20-day recess of Congress. Obama made the appointments after Republicans continued to stall on considering the nominations. Article II, Section 2 of the Constitution grants the president authority to make recess appointments. The D.C. Circuit’s opinion was crafted by three-Republican appointees and was widely panned by legal scholars, noting that presidents have for a century used recess appointments to fill executive and judicial vacancies to help keep the government functioning. Also, as Ohio State University law school professor Peter Shane has pointed out, three other federal courts of appeals have ruled the other way, upholding the presidents’ recess appointment powers. (Another federal appeals court, however, has followed the wobbly D.C. Circuit’s opinion, so there is a split among the circuits, which heightens the chance the U.S. Supreme Court will jump into the mix and take Canning for review.)
In a brief urging the high court to take Canning, 45 Republican senators argued that the D.C. Circuit’s opinion should be upheld. Such appointments, the brief states “have become a means to sidestep Senate confirmation.” They added, “In any case, the President himself has made clear that he will resort to recess appointments, and indeed has done so, precisely to circumvent perceived Senate opposition.” See Sahil Kapur’s reporting on the GOP brief.
But there is nothing perceived about the opposition Republicans have mounted to hamstring the NLRB and for that matter greatly slow the efforts of the president to fill vacancies on the federal bench, which has resulted in a crisis on the bench with vacancies hovering around 80.
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.