D.C. Circuit’s Appointment Usurpation Ripe for High Court Reversal as Non-Justiciable

June 7, 2013
Guest Post

by Victor Williams, Clinical Assistant Professor of Law, Columbus School of Law, Catholic University of America

President Barack Obama engaged in welcome “audacity of hope” when he named three stellar lawyers to the D.C. Circuit, even as his own lawyers were busy taking the court’s Noel Canning ruling to the Supreme Court. Each of his judicial picks -- Patricia Ann Millett, Cornelia Pillard and Robert Leon Wilkins -- built a sterling record since graduating from Harvard Law. Each is a perfect fit for, and transformative addition to, the nation’s second highest court. 

Obama accurately describes the court as having a unique national jurisdiction and “final say” responsibility. In a 2006 essay, “What Makes the D.C. Circuit Different,” John Roberts explained: “Whatever combination of letters you can put together, it is likely that jurisdiction to review that agency’s decision is vested in the D.C. Circuit.”  Supreme Court nominees are often drawn from the D.C. Circuit; indeed, one of the three vacancies that Obama seeks to fill has been empty since Circuit Judge John Roberts rose to the U.S. Supreme Court.

Having battled unprecedented partisan confirmation obstruction for the entirety of his tenure, PresidentObama also took opportunity at the Rose Garden announcement to make the case against Senate delay and procedural hurdles. He spoke about past nominees -- of both parties -- unfairly worn down by obstructionist delay. Assertive, while not combative, Obama simply asked the Senate minority not to block up-or-down confirmation votes: “What I am doing today is my job. I need the Senate to do its job.”  

Republicans Jump the Obstructionist Shark; Noel Canning May Backfire 

Senate Republicans predictably responded by doubling down on obstruction. Absurdly shouting “court packing” and “intimidation,” the Senate minority quickly launched its campaign of obstruction. The D.C. Circuit’s bench status quo is exactly what the GOP wants; the court’s opinion in Noel Canning v. NLRB serves as best evidence.  The radical ruling nullified the independent labor agency’s legal authority and challenged the legitimacy of over 500 intersession recess appointed officials and judges. Unknown-thousands of acts and judgments by recess appointed officials were tainted as ultra vires. As I argued in the National Law Journal, the congressional pro forma scheduling shenanigans of the past years pale in comparison to the D.C. Circuit panel’s interpretive gimmickry. The ruling rejects 150 years of accepted appointment practice and threatens exponential chaos in regulatory law. 

Even the most partisan obstructionist can “friend” the current D.C. Circuit. Last week all 45 members of the Senate Republican Conference, led by Minority Leader Mitch McConnell (R-Ky.), filed amici curiae brief at the Supreme Court asking the high court not only to affirm the D.C. Circuit’s Noel Canning decision but to broadly ratify the senators right to obstruct. The senators’ amici brief asked the high court to accept certiorari in order to broadly consider “all the aspects” of the appointments. In doing so, the Senate Republicans jumped the obstructionist shark.

The Senate minority, and their special interest supporters, may be in for a serious Supreme Court shock. Through his Solicitor General, Donald Verrilli, the president has offered exceptionally convincing arguments for both granting certiorari and overturning the ruling below. The NLRB petition builds upon the excellent case made by White House Counsel Kathryn Ruemmlerat the time of the appointments.  As recently described, the Constitutional Accountability Center’s amici brief supporting the Petition added additional strength to the president’s position.

A Noel Canning Amicus Brief Offers an Alternative Theory -- Political Question Non-justiciability

Indeed, the high court may not need to reach the merits of the case in order to reverse Noel Canning.  Few, if any, of the justices should welcome obstructionists’ efforts to drag the judiciary into the ongoing partisan conflict.  As I argue in a friend-of-the-court brief, filed last week at the Supreme Court in Noel Canning, the recess appointment challenge presents the Supreme Court with a political – not  a legal – question.The brief describes how reviewing the appointment battles would thrust the Court into the densest of modern “political thickets;” props to Felix Frankfurter.  As I have argued in popular forum, and in prior amicus briefs to both the D.C. and Third Circuits, the question should be left to the political branches to resolve. In New Vista Nursing v. NLRB, a Third Circuit panel majority was nonplused by my non-justiciability arguments. The two judges were quite eager, however, to sua sponte reach back to March 2010 and revoke President Obama’s intersession recess appointment of NLRB Chair Craig Becker. An exhaustive and compelling dissent from one judge on the New Vista panel deserves close study by the high court. 

Although my Supreme Court brief in Noel Canning fully endorses the Solicitor General’s certiorari rationale, I offer an alternative theory for both granting certiorari and summary reversal.  The brief counsels the Court to consider adding to the three questions advanced by the parties a “Threshold Question Presented” which, if answered in the affirmative, would negate the need for further analysis:  “Whether challenge to the President’s exercise of his exclusive Article II, Section 2, Clause 3 authority is a non-justiciable political question.” (Law faculty types are taught to encourage arguments-in-the–alternative).

The political-question doctrine is fundamental to the separation of powers and to basic principles of government by consent. John Marshall provided early non-justiciability guidance in Marbury v. Madison:  "By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.”  Most recently in Zivotofsky v. Clinton, Sonia Sotomayor reiterated the importance of the political question doctrine’s “due regard for the separation of powers and the judicial role.” In agreeing with the Zivotofsky majority’s holding that interpretation of a statute merely regulating a passport’s contents did not present a political question, Justice Sotomayor’s concurrence reiterated the “demanding” inquiry needed to consider political questions as developed in such modern cases as Baker v. Carr, Nixon v. United States and Goldwater v. Carter.  Pushing the certiorari amicus 6,000 word limit to the last character, my brief attempts to prompt the Court to begin that “demanding” inquiry. 

It offers the well-worn Baker characteristics “[p]rominent on the surface of any case held to involve a political question,” including, as most relevant for inquiry into recess appointment challenges, “a textually demonstrable constitutional commitment of the issue to a coordinate political department.” Baker also precludes judicial review of an issue where there is a “lack of judicially discoverable and manageable standards for resolving it,” or when it is impossible for the court to undertake “independent resolution without expressing lack of the respect due coordinate branches of government.” I argue that at least three Baker factors are implicated by the NLRB v. Noel Canning adjudication. 

The drafting/ratification history, logical structure and functional purpose of the Recess Appointment Clause prove that the issue is textually committed exclusively to the president.  Alexander Hamilton emphasized in Federalist 67 that the recess appointment authority is “intended to authorize the President singly to make temporary appointments.” The textual commitment recognizes that only the Executive possesses the institutional competence to know when such temporary appointments are required to meet his Article II, Section 3 obligation: “[H]e shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”    

Walter Nixon v. United States:  Applying Classical and Prudential Criteria

In Walter Nixon (aka “the other Nixon), the Court rejected as non-justiciable de-benched Judge Walter Nixon’s challenge to the Senate’s shortcut exercise of its Article I, Section 6, Clause 3 “sole” duty to “try” all impeachments.  An “evidence committee” of 12 Senators heard live testimony and received evidence while 88 senators avoided jury dutyin favor of later having access to a cold record. All100 senators thenvoted -- thumbsupordown -- to strip the federal trial judge of his tenured office and salary. An efficient, modern process, but hardly the Framers’ vision of the upper legislative chamber fully transformed into the nation’s High Court of Impeachment. 

Nevertheless, the Court refused to play semantic games: Chief Justice William Rehnquist wrote that “the word ‘try’ in the Impeachment Trial Clause did not provide an identifiable textual limit on the removal authority which is committed to the Senate.”  Similarly, the terms“the Recess” and “Vacancies that may happen” in the Recess Appointment Clause of Article II, Section 2, do not provide an identifiable textual limit on the exclusive authority which is committed to the President.  The commitment of temporary appointment authority, that Hamilton describes as “singly” granted to the President, is of the same quality as the commitment of impeachment trial authority “solely” to the upper chamber. 

Walter Nixon further cautioned: “Judicial involvement in impeachment proceedings,even if only for purposes of judicial review, iscounterintuitive because it would eviscerate the‘important constitutional check’placed on the Judiciary by the Framers.” The Supreme Court refused to place removal review “in the hands of the same body that the impeachment process is meant to regulate.” Similarly, the judiciary should be conflicted-out of reviewing the appointment process by which judges are strategically and most efficiently benched. Over 300 judges have been recess appointed since George Washington began the practice. The first five presidents “regulated” bench vacancies by recess appointing over thirty federal judges, including five Supreme Court justices. 

Recess Appointment is an “Important Constitutional Check” Used to Transform/Diversify Courts

In addition to nullifying the NLRB, the D.C. Circuit’s Noel Canning ruling served as a preemptive strike against Obama’s effort to fully staff, transform, and diversify the bench. The ruling insured the president would not be signing recess commissions to place judges immediately on the D.C. Circuit or any other federal bench. And the ruling substantially weakened the executive branch’s ability to confront Senate obstruction of permanent appointments. The Noel Canning panel was aware, by my amicus brief below, that Presidents have assertively used the recess authority to bench judges for progressive and transformative results. “Presidents have long used the recess appointment power to ease the way for putting well-qualified and distinguished judges from underrepresented groups on the federal bench,” writes Fourth Circuit Judge Diane Motz.

History is full of recess appointed “judicial firsts.” Four of the first five African-American judges on the U.S. Court of Appeals were recess appointed. The first two female judges came to the U.S. District Court by recess commissions, as did the first Jewish federal trial judge.  Seeking a way around Southern Democrat obstructionists, John F. Kennedy recess-commissioned over twenty percent of his judges. JFK recess commissioned 17 judges on just one day -- Oct. 5, 1961. Thurgood Marshall was named to the Second Circuit on that day, which provided the NAACP lawyer with much-needed protection for future harsh Senate confirmation ordeals.   

Longstanding vacancies on a court obviously increase the en banc power and panel influence of incumbent judges. The three Noel Canning judges kept more than their fair share of the en banc power of the eleven-member court and insured the demographic status quo of their upscale judicial neighborhood -- at least for a little longer. Best to think such were unintended Noel Canning consequences; yet, the conflict-of-interest was argued to the judges as patent.  

Judicial Review of Predicate Appointment Obstruction including Filibusters

My amicus brief directly asserts -- perhaps for the first time before the Supreme Court -- that the Senate filibuster/cloture rule unconstitutionally distorts the appointment process. If the Supreme Court subjects the president’s exercise of temporary appointment authority to judicial review, it must also fully review the predicate confirmation obstruction -- including the Senate supermajority cloture vote required to overcome confirmation holds and filibusters. When a minority of just one senator lodges a hold or a filibuster threat, the Appointment Clause’s simple-majority advisory consent vote is effectively amended; rather a supermajoritycloture vote is required. If Noel Canning is justiciable, then the 45 Republican senator amici are perhaps right, the Court should consider “all aspects” of the recess appointments including their predicate obstruction.

My brief repeats an argument made by amici in the Eleventh Circuit’s 2004 Evans adjudication of Judge William Pryor’s recess appointment.“It would be a strange justice to ‘let a minority of the Senate escape judicial review of its arguably unconstitutional obstruction, while subjecting to judicial review the President's response -- acquiesced in by the Senate majority -- to that obstruction.’”  As confirmation obstruction could be argued to impact the individual rights of nominees, perhaps the unconstitutional filibuster might be justiciable even if a recess appointment challenge would not.  Note, however, that a recent challenge to the Senate’s use of the filibuster was analyzed by the D.C. District Court as presenting a non-justiciable political question based on the three Baker factors argued earlier.(See Common Cause v. Biden, 2012 WL 6628951 (D.D.C., Dec. 21, 2012). 

Fulsome Public Support Needed for D.C. Circuit Confirmations

The Supreme Court’s docket now shows Noel Canning briefs are distributed for its June 20 private conference.  Soon, the justices will have the first opportunity to discuss whether to add the political dispute to their October 2013 term of cases. (SCOTUSblog offers links to all briefs). Meanwhile, President Obama will spend his summer fighting to fill the D.C. Circuit slots and many other critical executive, agency and court vacancies. Obama needs and deserves strong public support of his attempts to diversity and moderate the D.C. Circuit’s bench. In this historic era of partisan rancor and jump-the-shark obstruction, our president deserves fulsome support for all his governance efforts. As Abraham Lincoln stated: "Public sentiment is everything. With public sentiment, nothing can fail.  Without it, nothing can succeed."