by Jeremy Leaming
A gaggle of senators, typically given to grousing about so-called activist judges, is agitating for court intervention into the president’s recent recess appointments, which The Atlantic’s Andrew Cohen highlights for its hypocrisy.
As Cohen notes, Sens. Charles Grassley (R-Iowa), John Cornyn (R-Texas), Orrin Hatch (R-Utah), Tom Coburn (R-Okla.), Mike Crapo (R-Idaho) and Lindsey Graham (R-S.C.) agreed to join 
other senators in filing a “friend of the court brief in support of the federal legal challenges to President Obama’s recess appointments of Richard Cordray to head the Consumer Financial Protection Bureau, and three selections to the National Labor Relations Board. On Friday the senators issued a letter about their intent to file the brief, which will argue that the appointments are unconstitutional.
All of those senators, members of the Senate Judiciary Committee, have at one time or another expressed outrage over judges who supposedly legislate from the bench. So Cohen finds “something deliciously hypocritical” of their call for a federal court to take action and nullify the president’s recess appointments.
Cohen has some advice on how Democrats should respond to the Republicans’ call for judicial action over the administration’s recess appointments, writing, “If I were a Democrat in the Senate, or a White House tribune, I would be responding to the GOP lawsuit letter by loudly doubling down on the concept of having judges determine political procedure. Republicans want the courts involved in recess appointments? Fine. Then they should embrace the notion that the federal courts ought to decide whether the filibuster is constitutional was well. After all, it has less explicit constitutional support than a recess appointment, does it not?”
Since it is likely that the Republican senators do not actually want judges determining the constitutionality of recess appointments or wading into the Senate’s use of the filibuster, they might more seriously focus on reforming procedure. Indeed it was the Senate Republican’s stalling tactics on Cordray’s nomination and the selections to the NLRB that prompted the recess appointments.
