President Obama

  • May 28, 2013

    by Jeremy Leaming

    Some beltway pundits have long-pleaded with the Obama administration to “flood-the zone,” Washington-speak – in this instance – for making a lot more nominations all at once to the federal bench.

    These pundits may have a bit to celebrate if President Obama puts forth three nominations to vacant seats on the 11-member U.S. Court of Appeals for the District of Columbia Circuit, as The New York Times reports may happen soon. That Court noted here often, is one of the more powerful among the appeals circuit courts, in part, because of the myriad and weighty constitutional concerns it rules on, many of which center on federal regulations. As The Times and many others have pointed out the D.C. Circuit has tilted rightward, thanks in part to the fact that an overwhelming majority of its senior judges are Republican-appointees. The Times noted the D.C. Circuit “has overturned major parts of the president’s agenda in the last four years, on regulations covering Wall Street, the environment, tobacco, labor unions and workers’ rights.”

    The Times reports that the potential nominees -- the White House would not comment on nominations not yet made – include three “experienced lawyers who would be unlikely to generate controversy individually.”

    But Sen. Minority Leader Mitch McConnell (R-Ky.) and Senate Judiciary Committee Ranking Member Chuck Grassley (R-Iowa) despite their protestations to the contrary have worked to stall or scuttle too many of the president’s judicial and executive branch nominations. The D.C. Circuit, at the moment is a business friendly outfit, recently issuing an opinion undermining the workers’ rights, is especially important to both leaders. Last month as Senate Judiciary Committee was conducting its hearing on Sri Srinivasan, the only Obama nominee to be confirmed the Court (finally), Grassley introduced a bill that would eliminate three judgeships on the D.C. Circuit and transfer them to the other circuit courts. In part Grassley argued that the D.C. Circuit’s caseload is light and other circuits need the judgeships more. Grassley’s effort has been blasted by the Constitutional Accountability Center’s Judith E. Schaeffer as 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 editorialists at The Wall Street Journal lauded Grassley’s effort saying President Obama, upset with the D.C. Circuit’s rulings, was aiming to “pack” the Court with judges to alter its ideological make-up.

    Russell Wheeler, an expert on federal courts, disagreed in an ACSblog post, citing a 1996 speech by the late Chief Justice William Rehnquist in which he noted the right of presidents to place their imprints on the judiciary. Rehnquist, Wheeler wrote, said, “When vacancies occur … on any of the federal courts, replacements are nominated by the President, who has been elected by the people of the entire nation, and subject to confirmation by the Senate, whose members have been elected by the people of their respective states. Both the President and the Senate have felt free to take into consideration the likely judicial philosophy of federal judges.”

  • May 22, 2013

    by Russell Wheeler, Visiting Fellow, Governance Studies, The Brookings Institution

    The U.S. Court of Appeals for the District of Columbia Circuit (CA-DC for short) has more vacancies, and a greater proportion of vacancies to judgeships, than any other federal appellate court. Appointees of President George W. Bush or his father hold four of the court’s 11 judgeships, and appointees of President Clinton hold three. Six senior judges, all but one Republican appointees, are on the draw but able to take reduced caseloads.

    Senate Republicans and their press allies believe the status quo is basically fine. They refused to allow a vote on one Obama nominee, Caitlin Halligan, bowing to National Rifle Association claims that she’s too liberal to serve in the federal judiciary. They appear willing to allow a vote on a second Obama nominee, the very capable Srikanth Srinivasan, who has served in both the Bush and Obama Justice Departments.

    But, they say, Srinivasan is enough. Why? The reason most commonly offered is that CA-DC doesn’t need more judges because it has a light caseload. Ranking Senate Judiciary Committee member Charles Grassley said, correctly, that its 108 filings per judgeship in 2012 was lowest in the country.

    Others respond, just as correctly, that raw filings hardly tell the whole story of a court’s workload. It’s impossible to compare accurately the workloads of the 13 courts of appeals because the federal judiciary has developed no accurate way to “weight” different case types in those courts—as compared to the fairly sophisticated method for weighting district court caseloads.

    But there is no doubt that CA-DC has a heavy docket of appeals from decisions of federal administrative agencies, appeals that do not benefit from initial review in the district courts. Former CA-DC chief judge Patricia Wald recently described them as “the most complex, time-consuming, labyrinthine disputes over regulations. . .cases [that] require thousands of hours of preparation by the judges, often consuming days of argument, involving hundreds of parties and interveners, and necessitating dozens of briefs and thousands of pages of record — all of which culminates in lengthy, technically intricate legal opinions.”

  • May 16, 2013

    by Jeremy Leaming

    Like his predecessor President Obama has embraced an aggressive, mostly secret and, at times, constitutionally suspect approach to waging a never-ending war on terror.

    Unlike its predecessor, the Obama administration has obsessively investigated leaks of information surrounding some of its counterterrorism efforts. The administration has launched at least six cases of alleged leaks, including one involving a foiled terrorist plot in Yemen that The Associated Press reported on last spring. As part of that investigation the Department of Justice secretly gathered and culled through phone records of AP reporters.

    Going on the information we have now it appears that the First Amendment, which protects freedom of speech including press from government interference, was too easily shunted aside in an over-the-top investigation of a leak. The AP was given no chance to challenge a government search of its phone records and have a judge decide whether national security interests trumped freedom of speech in this instance. Yes, Attorney General Eric Holder claims the leak was one of the most egregious he has seen in a long, long time. But he doesn’t explain how it was so terribly egregious, nor do the facts as we know them now support his sweeping assertion.

    And today, during a press conference, President Obama hardly appeared fazed by the criticism of the DOJ’s tactics, decrying leaks of counterterrorism efforts. “Leaks related to national security can put people at risk, they can put men and women in uniform that I’ve sent into the battlefield at risk,” he said.

    But the May 7, 2012 reporting by the AP, had, according to its president, Gary Pruitt, been held until the White House assured the AP that “national security concerns" were no longer an issue. Pruitt added, “Indeed the White House was preparing to publicly announce that the bomb plot had been foiled.”  

    Earlier this week The New York Times Editorial Board hammered the administration for its “zeal” for going after persons accused of leaking national security information. In the AP matter, The Times Editorial Board said the administration had offered no “credible justification for secretly combing through the phone records of reporters and editors at The Associated Press in what looks like a fishing expedition for sources and an effort to frighten off whistle-blowers.”

    It’s rather lame to argue that just because Republicans howled loudly over the AP coverage of the foiled terrorist plot in Yemen that the DOJ’s obnoxious action of spying on the AP was somewhat mitigated. Moreover, it’s not like this administration has needed prodding to aggressively and obsessively go after alleged leakers.

  • 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.

  • May 15, 2013
    Guest Post

    by Anne Marie Lofaso, Associate Dean for Faculty Research & Development, Professor of Law, West Virginia University College of Law

    The Senate Health, Education, Labor and Pensions (HELP) Committee will hold hearings tomorrow on President Obama’s five nominees to the National Labor Relations Board (NLRB or Board). So why, when there are so many vitally important issues facing our country – the enormous budget deficit and sequester being only two of those issues – is the Senate spending its time on the confirmation of five public servants?

    Since the 1947 Taft-Hartley amendments, the Board has been comprised of five members, appointed by the president with the advice and consent of the Senate. For years, Senate Democrats and Republicans held to a gentlemen’s agreement that the president would select three Board members from the majority party and two Board members from the minority party. Over the years, these nominations became increasingly more political, with administrative decisions predictably oscillating between pro-business and pro-labor-enforcement results, depending on which party held control of the Executive Branch.

    In an administrative agency that tends to make law by adjudication rather than rulemaking, this back-and-forth between reasonable interpretations of the National Labor Relations Act (NLRA or Act) is both lawful and par for the course. Those in power are privileged to re-interpret the statute that they are charged by Congress with administering so long as the following conditions are met: (1) a case comes along that raises the issue; (2) their statutory interpretation is reasonable and permissible/constitutional; and (3) they give reasons for changing their mind.