by Victor Williams, Clinical Assistant Professor of Law, Columbus School of Law, Catholic University of America
On the first Monday in October, the Supreme Court returned from its long summer recess. Thus, the 2014 NLRB v. Noel Canning ruling -- which revoked President Barack Obama’s 2012 NLRB recess appointments – has well passed it first anniversary.
The high court’s conjuring of an absolutist 3-day Senate recess minimum conjoined with a vague and unworkable “presumptive 10-day” Senate recess rule (with an added “unusual occurrence” complexity) continues to be analyzed. Some in the academy acclaim Steven Breyer’s majority opinion as reflecting a new “pragmatic formalism” while most others praise it for at-least being opposite Antonin Scalia’s dissenting-concurrence which restated the D.C. Circuit’s uber- textualist ruling. I continue to think it was a mistake for the judiciary to have involved itself in the political branch appointments battles.
No reporter, academic, or commentator, however, has yet revealed that Noel Canning also revoked President Lyndon Johnson’s January 1964 judicial recess appointments of civil-rights legends Leon Higginbotham, Spottswood Robinson, and David Rabinovtiz. In a just-published article in the Houston Law Review’s online edition, I expose the unconsidered Noel Canning consequence of the judgeship revocations. As the recess commission were signed by Lyndon Johnson during an eight day intersession recess of the 88th Senate, Noel Canning judged the recess 48 hours too short and the judgeships illegal. The recess appointments were “rendered illegitimate” for failing the “presumptive 10-day” recess test. The eight day break was 48 hours too short.
Six weeks after John F. Kennedy’s murder, LBJ forced the racial and religious integration of three federal courthouses. The new president signaled his administration’s commitment to civil rights and directly challenged racist and reactionary forces in both the Senate and the federal judiciary. The LBJ White House tapes tell the story for Higginbotham, Robinson, (expect a slight delay) and Rabinovitz, and as Johnson made sure he secured the most political capital for signing each commission in the coming battle for the Civil Rights Act.