Other courts

  • May 21, 2013

    by Jeremy Leaming

    Sen. Chuck Grassley (R-Iowa) a champion of obstructing President Obama’s nominations to the federal bench and some to executive branch positions, has focused special attention on the U.S. Court of Appeals for the District of Columbia Circuit.

    The D.C. Circuit is a significant court that hears high-profile national security concerns and cases regarding federal regulation, among other lofty matters. Patricia Wald, retired, served on the august Circuit court for 20 years, including five as its chief judge. She noted in a piece for The Washington Post, “Aside from the U.S. Supreme Court, it resolves more constitutional questions involving separation of powers and executive prerogatives than any court in the country.”

    The eleven-member court has four vacancies and President Obama has yet to fill one of them, because of Senate obstructionism. Senate Republicans twice scuttled Obama’s nomination of Caitlin Halligan to fill one of the Court’s vacancies. Some pundits say too much focus is placed on increasing obstructionism and grope for other excuses for the federal bench’s high vacancy rate. (See JudicialNominations.org for more on the vacancies.) But those pundits are simply uniformed or disingenuous. Republicans, led by the ringleader of obstruction, Sen. Mitch McConnell (R-K.Y.) have stalled nominees to the Circuit courts and even some to the federal district courts. At The Dish, Andrew Sullivan has blasted the GOP for its rampant obstructionism, in reporting on a Party that has become increasingly hostile to governing.

    The D.C. Circuit with its four Republican appointees and three Democratic appointees has eagerly invalidated regulations to protect the environment, which is good for corporations, bad for humans, and earlier this year issued an opinion re-writing the president’s recess appointment power. Several of the D.C. Circuit's judges are also on senior status, which means they have much more flexibility in what cases they participate, and a greater chance exists that a three-judge panel will more often be made up of three Republican appointees. It’s a Court that caters to corporate interests, which is likely one, if not the compelling reason, Grassley and other Republicans are striving to keep Obama from placing judges on the Court.

    Grassley a part of the apparatus that blocked Halligan has not, so far, stood in the way of another nominee to the D.C. Circuit, Sri Srinivasan. But Grassley is pushing legislation that would cut the number of judges on the bench, signaling an effort to make sure the president has no more chances to shape the make-up of the D.C. Circuit. Grassley would move judgeships to the U.S. Court of Appeals for the Second Circuit and the U.S. Court of Appeals for the Eleventh Circuit.

    Part of Grassley’s push entails the canard that the D.C. Circuit has a light caseload. The Constitutional Accountability Center’s Judith E. Schaeffer in post for the group’s Text & History blog blasted Grassley’s effort as a “partisan sham.” She continued, adding that the Grassley effort amounted to “a ‘mass filibuster’ of President Obama’s future nominees to this critical circuit court. Senator Grassley’s bill is nothing more than a ploy to give cover to Senate Republicans who have no intention of letting a Democratic president fill those three vacancies on the D.C. Circuit.”

    The right-wing editorial board of The Wall Street Journal has also joined Grassley’s cause. In a May 20 editorial, it apes Grassley’s talking points, saying the D.C. Circuit “doesn’t need the judges. The D.C. Circuit is among the most underworked court in the federal system.”

  • May 20, 2013

    by Jeremy Leaming

    For decades Religious Right activists have cultivated a wobbly narrative, championed by pundits like Bill O’Reilly, of a secular America striving to erase Christianity from the public square.

    These activists, such as the Family Research Council and the American Family Association and televangelists like Pat Robertson and the late Jerry Falwell, often blamed the Supreme Court for leading the way.

    First, they have argued the Supreme Court yanked prayer and Bible readings from the public schools in the cases Engel v. Vitale and Abington v. Schempp. But neither of those cases did such things. Instead the Supreme Court in those cases prohibited organized religion in the public schools. In other words public school teachers and administrators had to stop leading students in religious activities. Those cases did not outlaw prayer or religion in the public schools; they just found that such activities must be truly student initiated.

    There’s also the annual farce dubbed the “war on Christmas,” where, supposedly, secularists roam city halls and public squares demanding the removal of all vestiges of religion. There are also Supreme Court cases involving these clashes between government officials and individuals bent on festooning public spaces with religious and non-religious symbols. The cases can seem a bit absurd, but a takeaway -- if public officials open their public buildings and spaces to say a nativity display they’d better be prepared to open them to displays of other holidays celebrated during the winter and some secular symbols too, like giant candy-canes or snowmen. For too many Religious Right activists, however, it’s not enough to decorate churches and private homes with religious symbols of the holiday season, they must also adorn government buildings with them and if government officials don’t comply they’ll point to a “war on Christmas.”

    Then there are government meetings and activities. From coast to coast there are city and town councils and other government bodies that like to open their public meetings with prayer. The use of prayer in government work has a long history. On the federal level, both chambers of Congress open each day with chaplains providing invocations and a marshal opens Supreme Court sessions, with “Oyez, oyez, God save the United States and this Honorable Court.”

    As the nation has evolved, however, and become more diverse, unsurprisingly you’ve had more and more people question the use of prayer during government sessions. And here again, you have a ripe opportunity for Religious Right zealots to complain about attempts to force government officials to either forgo prayer altogether at their official functions or mix it up and include invocations from all kinds of religious groups.

    The Supreme Court has touched upon prayer during government sessions, and today the Roberts Court agreed to consider a case – Town of Greece v. Galloway – that allows the high court to revisit precedent on government and prayer. The case arises from Greece, N.Y. where Christian prayer has frequently been used to open town board meetings. As The New York Times’ Adam Liptak reports the town’s prayer policy has been in place since 1999 and town officials have said that people of all faiths, including atheists, can offer invocations.

  • May 17, 2013
    Guest Post

    by Senator Tom Harkin (D-Iowa). Sen. Harkin is the Chairman of the Health, Education, Labor, and Pensions Committee.

    This week, the Senate Health, Education, Labor, and Pensions (HELP) Committee, which I chair, held a hearing on the full slate of five nominees to the National Labor Relations Board (NLRB): Mark Gaston Pearce, Richard F. Griffin, Jr., Sharon Block, Harry I. Johnson III, and Philip Andrew Miscimarra. These are vitally important nominations because the enforcement of our labor laws is essential to the growth of a strong middle class and to the smooth functioning of businesses large and small across the country. Without Congressional action, the NLRB will go dark in August -- which could have a truly troubling impact on our economy.

    Workers and employers alike rely on the fact that the Board will enforce our labor laws, and enforce contracts between labor and management.  For the thousands of American workers fired every year for trying to organize a union in their workplace, an NLRB out of commission means that those workers would have to wait years before they could get their job back or any back pay for lost wages. From the business perspective, the NLRB also ensures that unions do not step outside the law in their interactions with workers or employers. Perhaps that is why a Senior Counsel to the National Federal of Independent Businesses (NFIB) said that “to have the Board totally shut down would be a travesty.”

    Despite this agreement on the importance of the Board’s operations, in recent years, Congressional Republicans have waged unprecedented attacks on the NLRB.  While it appears that their real goal might be to repeal the National Labor Relations Act altogether, because they know that an attempt to repeal the law directly would surely fail, they have worked instead to dismantle the Board by attempting to hold up nominees or strip its funding. In the last Congress, House Republicans launched a series of efforts to shutter the NLRB, including voting to defund the Board entirely, and proposing a budget to force the Board to furlough all of its employees for most of 2011. Republicans have also proposed bills to abolish the NLRB and bills to limit its ability to enforce decisions and promulgate regulations.

    Of course, these efforts to undermine the Board are all part of a larger Republican assault on the unions and on collective bargaining in states like Ohio, Wisconsin, and Michigan.  These attacks don’t just hurt unions -- they undermine the very existence of the American middle class.

  • May 16, 2013

    by E. Sebastian Arduengo

    A bit of good news emerged earlier today from the Senate Judiciary Committee, where Sri Srinivasan’s nomination to the D.C. Circuit Court of Appeals was unanimously approved.

    This puts Srinivasan, the principal deputy solicitor general, a step closer to a judgeship that he was originally a nominated for in June of last year. Showing how distorted the nominations process has become, what made this story unusual wasn’t the nearly one-year long wait he endured (unfortunately such waits are now so commonplace that they don’t draw much mention), rather it was how he was unanimously approved. In today’s Senate such bipartisan actions are rare.

    While this was a significant win for the Obama administration, it comes amidst growing obstructionism of executive branch nominations at all levels. This obstructionism has been so spectacularly effective that despite the fact that there’ve been three vacancies on the D.C. Circuit for most of the Obama Presidency, he has thus far been unable to confirm any judges to the court. His first choice, New York Lawyer Catlin Halligan, was filibustered twice by Senate Republicans, even though her qualifications were exceptional and had supporters on both sides of the aisle.

    Meanwhile, the Republican appointees on the D.C. Circuit continue to rule against government regulation and worker’s rights. Two weeks ago, the court struck down a National Labor Relations Board (NLRB) rule requiring employers to post notices containing information about workers’ rights to unionize. The decision was par for the course for the Court, which also ruled that recess appointments to the NLRB were unconstitutional, struck down an Environmental Protection Agency rule intended to control air pollution that crosses state lines, and openly flouted Supreme Court precedent on national security. It all adds up to a Court that’s the most business-friendly (and powerful) in the country, and Senate Republicans have fought to keep it that way.

  • May 15, 2013
    Guest Post

    by Peter M. Shane, Jacob E. Davis & Jacob E. Davis II Chair in Law, Moritz College of Law, Ohio State University

    Much of my writing on the constitutional separation of powers and checks and balances in operation is directed at the central importance of informal norms to effective government. Chief Justice Hughes famously wrote that “[b]ehind the words of the constitutional provisions are postulates which limit and control.” A subtle, but intimately related point is that our constitutional plan cannot work unless the competing institutions (and those in charge of them) agree on some common overarching values and on certain general understandings as to shared aims and the limits of unilateral power.

    If you think the text of the Constitution provides sufficient guidance by itself to keep the government operating, do a few thought experiments. Imagine that the Senate and House had adopted a custom early on that each would unanimously reapprove any legislation returned to Congress with a presidential veto. Nothing in the Constitution forbids such a practice. 

    Imagine that Congress had read the Constitution to allow the House to impeach presidents for acts of lesser magnitude than “high Crimes or Misdemeanors,” providing that conviction carried some punishment short of removal. Don’t believe the constitutional text permits this? Read it. 

    These things did not happen, I presume, because Congress recognized that such “customs” would eviscerate the contemplated co-equality of the executive and legislative branches. But not a word of constitutional text would have cast doubt on these practices.

    What we are witnessing today in depressing, even contemptible form is a GOP-led congressional subversion of two of the most elementary norms on which our government rests. The first is the proposition that the government should actually function.  Agencies Congress has created and to which it has delegated administrative responsibilities should discharge those responsibilities efficiently and effectively. The second is that the president is primarily responsible for achieving effective administration and, toward that end, he is entitled to significant, if not controlling deference by the Senate in his choice of individuals to head government agencies.