We Interrupt This Blog…

…and outsource it to Scott Lemieux of Lawyers, Guns, and Money, who sets forth succinctly the meaning of Neoconfederate David Sentelle’s DC Circuit opinion today regarding recess appointments.  Specifically, this controversy concerned recess appointments to the National Labor Relations Board, and the right-wing Republican panel struck them all down, which I am sure is completely coincidental.  But obviously it has vast implications for environmental law, especially if (as seems likely) Senate Republicans will filibuster any appointments to EPA and Energy, and perhaps to Interior as well.  “Enjoy.”

Neoconfederate Judges Rule NLRB Recess Appointments Unconstitutional

Oh, great. The opinion is an atrocity, classic “hack originalism for dummies,” relying heavily on the fact that recess appointments during nominal sessions of the Senate are a relatively recent phenomenon (although there’s precedent going back to 1867, and “[t]he last five Presidents have all made appointments during intrasession recesses of fourteen days or fewer”), without considering that the Senate systematically refusing to consider presidential nominees is also a contemporary phenomenon.  The “pro forma” sessions the D.C. Circuit sees as breaking the constitutional “Recess” are intended solely to prevent the president from exercising the recess appointment power, the very check that the framers included to counteract the possibility that the Senate would obstruct the functioning of government by serially refusing to consider nominees.   Separation of powers analysis that refuses to acknowledge how the government actually functions provides a clinic in the limitations of law-office history.

And the hackishness is also obvious — one branch is allowed to push the constitutional envelope as far as it wants while the other is unable to respond using the tools the framers explicitly made available because 18th century presidents didn’t have to use this power in the same way because they had no reason to.   Loose construction for me, implausibly arid formalism for thee, and it defeats the purpose of the recess power appointment, which if it means anything should allow the president to stop the minority party in one house of Congress from thwarting the functioning of regulatory bodies.    And — what are the odds? — it just happens that the result coincides with the policy preferences of the Republican author of the opinion, who considers the 20th century regulatory state unconstitutional.   The implications of this decision are far-reaching, as it would invalidate the good decisions the NLRB has made during this period and (because of a recent Supreme Court decision requiring a quorum of three) effectively stop the NLRB from operating until the minority party in the Senate chooses to allow it do so.

Of course, also important here that between Obama’s strange inattention to federal judicial appointments and Republican filibusters he’s the first president in at least 50 years not to get a single nominee confirmed to the D.C. Circuit.

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Reader Comments

24 Replies to “We Interrupt This Blog…”

  1. If you’re going to “outsource” the blog, at least outsource it to someone who’s a bit more reliable (and doesn’t swallow Think Progress’s unthinking hyperbole). The opinion is quite aggressive and sweeping — far more so than necessary to invalidate these appointments — but it also adopts a position that’s been embraced not only by many originalist scholars (e.g. Michael Rappaport) but also by noted right-wing hacks Laurence Tribe and Marty Lederman and “Neo-confederate” Senators like Ted Kennedy. (Links below).

    http://balkin.blogspot.com/2005/08/john-bolton-is-unconstitutional.html

    http://balkin.blogspot.com/Stephens.Reply.FINAL.corrected.pdf

    http://balkin.blogspot.com/FranklinFinal.pdf

    Had the President really been interested in filling these positions, he could have at least gone through the pretense of making intersession appointments (as T.R. did) and not appointed someone who had only been nominated a few days earlier. Instead, the Administration pushed the envelope — even more so than the Bush folks had — relied on a transparently results-oriented OLC opinion, and got smacked down. I doubt the reasoning of this opinion will stand, but I suspect the ultimate outcome — invalidation of these appointments — will.

    P.S. Good to meet you in person yesterday, even if only for a moment.

  2. If you’re going to “outsource” the blog, at least outsource it to someone who’s a bit more reliable (and doesn’t swallow Think Progress’s unthinking hyperbole). The opinion is quite aggressive and sweeping — far more so than necessary to invalidate these appointments — but it also adopts a position that’s been embraced not only by many originalist scholars (e.g. Michael Rappaport) but also by noted right-wing hacks Laurence Tribe and Marty Lederman and “Neo-confederate” Senators like Ted Kennedy. (Links below).

    http://balkin.blogspot.com/2005/08/john-bolton-is-unconstitutional.html

    http://balkin.blogspot.com/Stephens.Reply.FINAL.corrected.pdf

    http://balkin.blogspot.com/FranklinFinal.pdf

    Had the President really been interested in filling these positions, he could have at least gone through the pretense of making intersession appointments (as T.R. did) and not appointed someone who had only been nominated a few days earlier. Instead, the Administration pushed the envelope — even more so than the Bush folks had — relied on a transparently results-oriented OLC opinion, and got smacked down. I doubt the reasoning of this opinion will stand, but I suspect the ultimate outcome — invalidation of these appointments — will.

    P.S. Good to meet you in person yesterday, even if only for a moment.

  3. Hi Jon — I think it’s quite adorable to suggest that Sentelle was relying on Larry Tribe and Marty Lederman in writing his opinion. In any event, Tribe can be quite hackish; for example, his argument that public nuisance for climate change is a political question written for the Washington Legal Foundation — a think tank far less reliable than CAP! They were wrong about Bolton and they are wrong now, but there is a big difference between using an intrasession recess appointment against a Senate that has supinely agreed to all Presidential appointments except one (2005), and here, when recess appointments are the only way to staff an administration in light of the Senate Republicans’ abuse of the rules and nuking of all previous records for filibustering. Yes — the application of Constitutional principles changes depending upon context. (Ditto regarding Reid: there it was Senate majority blocking recess appointments whereas here it is a House majority. That IS Constitutionally significant.).

    I agree with you completely that the administration has been quite cavalier about appointments and that these will likely not stand. That’s what is so outrageous about Sentelle’s opinion: he didn’t need it to strike down a recess appointment when the Senate was still in session! Obama should have used his authority under Article II Section 3 to allow him to make the recess appointment (and no, there isn’t any constitutional difference for these purposes between adjournment and recess.).

    Good to meet you too!

  4. Hi Jon — I think it’s quite adorable to suggest that Sentelle was relying on Larry Tribe and Marty Lederman in writing his opinion. In any event, Tribe can be quite hackish; for example, his argument that public nuisance for climate change is a political question written for the Washington Legal Foundation — a think tank far less reliable than CAP! They were wrong about Bolton and they are wrong now, but there is a big difference between using an intrasession recess appointment against a Senate that has supinely agreed to all Presidential appointments except one (2005), and here, when recess appointments are the only way to staff an administration in light of the Senate Republicans’ abuse of the rules and nuking of all previous records for filibustering. Yes — the application of Constitutional principles changes depending upon context. (Ditto regarding Reid: there it was Senate majority blocking recess appointments whereas here it is a House majority. That IS Constitutionally significant.).

    I agree with you completely that the administration has been quite cavalier about appointments and that these will likely not stand. That’s what is so outrageous about Sentelle’s opinion: he didn’t need it to strike down a recess appointment when the Senate was still in session! Obama should have used his authority under Article II Section 3 to allow him to make the recess appointment (and no, there isn’t any constitutional difference for these purposes between adjournment and recess.).

    Good to meet you too!

  5. Agreed to all presidential appointments but one? Really? you’re forgetting about Peter Flory at Defense, Susan Dudley at OIRA. I could go on. Another slight correction: The Republicans had the majority when Bolton was filibustered in 2005. (It was a 55-45 split.) Further, all of Bush’s judicial nominations who were filibustered enjoyed bipartisan majority support — and the Republicans had the majority then too. (And, fwiw, this was the first time appellate judicial nominees had been filibustered in the nation’s history.)

    the current NLRB appointments were extraordinary in some respects, however. Two of the nominations had been pending for only three weeks at the time they were appointed (and over the holidays at that) and one of the board spots had only been vacant for a day. Further, Obama could easily have claimed to be following the Roosevelt precedent and claimed they were intersession appointments. But just as the D.C. Circuit panel was not content with adopting the narrowest basis for its decision, the Obama Administration was not content to take the safest route for making these recess appointments.

  6. Agreed to all presidential appointments but one? Really? you’re forgetting about Peter Flory at Defense, Susan Dudley at OIRA. I could go on. Another slight correction: The Republicans had the majority when Bolton was filibustered in 2005. (It was a 55-45 split.) Further, all of Bush’s judicial nominations who were filibustered enjoyed bipartisan majority support — and the Republicans had the majority then too. (And, fwiw, this was the first time appellate judicial nominees had been filibustered in the nation’s history.)

    the current NLRB appointments were extraordinary in some respects, however. Two of the nominations had been pending for only three weeks at the time they were appointed (and over the holidays at that) and one of the board spots had only been vacant for a day. Further, Obama could easily have claimed to be following the Roosevelt precedent and claimed they were intersession appointments. But just as the D.C. Circuit panel was not content with adopting the narrowest basis for its decision, the Obama Administration was not content to take the safest route for making these recess appointments.

  7. Reid invented the pro forma session when the Dems were in the majority — they couldn’t have scheduled them when the Dems were in the minority!

    Yes, the Dems filibustered some judicial nominees — after unprecedented and grotesque obstruction by the Republicans during the 1990’s:

    http://www.samefacts.com/2011/05/watching-conservatives/judicial-filibusters-who-started-it-and-why-does-it-matter/

    http://www.washingtonmonthly.com/archives/individual/2003_10/002501.php

    As you know, I believe that all filibusters of Article II officers are unconstitutional. Note, of course, that per Sentelle’s opinion, the NLRB weren’t vacant for too SHORT of a time: they were vacant for too LONG of a time!

  8. Reid invented the pro forma session when the Dems were in the majority — they couldn’t have scheduled them when the Dems were in the minority!

    Yes, the Dems filibustered some judicial nominees — after unprecedented and grotesque obstruction by the Republicans during the 1990’s:

    http://www.samefacts.com/2011/05/watching-conservatives/judicial-filibusters-who-started-it-and-why-does-it-matter/

    http://www.washingtonmonthly.com/archives/individual/2003_10/002501.php

    As you know, I believe that all filibusters of Article II officers are unconstitutional. Note, of course, that per Sentelle’s opinion, the NLRB weren’t vacant for too SHORT of a time: they were vacant for too LONG of a time!

  9. Yes, Reid invented the pro forma session were in the majority — as they are now and when the NLRB appointments were made. The links on the obstruction of judicial nominees omit the obstruction of Reagan and Bush nominees that began in 1986 (even before Bork) — and two blue slips weren’t necessary to block nominees back then (see, e.g., Terrence boyle, John Roberts (the first time), Lilian BeVier, etc.). It’s been an escalating game of tit-for-tat ever since.

  10. Yes, Reid invented the pro forma session were in the majority — as they are now and when the NLRB appointments were made. The links on the obstruction of judicial nominees omit the obstruction of Reagan and Bush nominees that began in 1986 (even before Bork) — and two blue slips weren’t necessary to block nominees back then (see, e.g., Terrence boyle, John Roberts (the first time), Lilian BeVier, etc.). It’s been an escalating game of tit-for-tat ever since.

  11. That’s a joke, right Jon? Boyle was unnanimously confirmed in 1984 to the district court. He wasn’t appointed to the Fourth Circuit until 1991, when the Democratic-controlled Senate took no action on it (ditto with Bevier). But the numbers that Gerhardt reports are still there: Clinton’s nominees fared an order of magnitude worse with a Republican Senate than Bush Sr.’s did with a Democratic Senate, and certainly than Reagan’s with a Democratic Senate (for two years). Oh, and Bork wasn’t obstructed: he was voted on, and defeated.

  12. That’s a joke, right Jon? Boyle was unnanimously confirmed in 1984 to the district court. He wasn’t appointed to the Fourth Circuit until 1991, when the Democratic-controlled Senate took no action on it (ditto with Bevier). But the numbers that Gerhardt reports are still there: Clinton’s nominees fared an order of magnitude worse with a Republican Senate than Bush Sr.’s did with a Democratic Senate, and certainly than Reagan’s with a Democratic Senate (for two years). Oh, and Bork wasn’t obstructed: he was voted on, and defeated.

  13. No joke. In late 1985, Senate Democrats settled on a strategy of blocking any and all Reagan appellate nominees they thought they could. (Reported in the Washington Post, Nov. 12, 1985). This resulted in efforts to defeat a few 1986-88 (such as Siegan and Sessions). They backed off a bit in 1989-90, and then slowed things down again in 1991-92. The Republicans responded in kind, and then some (hence Gerhardt’s numbers, and my reference to a game of escalating tit-for-tat). Ditto the Democrats after 2000 (despite olive branches in the form of the Gregory and Parker nominations in May 2001, and the deal that put Helene White on the 6th later), and then ditto the Republicans since. For over 25 years, each side has repaid the favor by doing the other one better (or, I should say, worse).

    As for filibusters of nominees, I don’t think they are appropriate for ANY Presidential nominees, but that’s not the world we live in.

  14. No joke. In late 1985, Senate Democrats settled on a strategy of blocking any and all Reagan appellate nominees they thought they could. (Reported in the Washington Post, Nov. 12, 1985). This resulted in efforts to defeat a few 1986-88 (such as Siegan and Sessions). They backed off a bit in 1989-90, and then slowed things down again in 1991-92. The Republicans responded in kind, and then some (hence Gerhardt’s numbers, and my reference to a game of escalating tit-for-tat). Ditto the Democrats after 2000 (despite olive branches in the form of the Gregory and Parker nominations in May 2001, and the deal that put Helene White on the 6th later), and then ditto the Republicans since. For over 25 years, each side has repaid the favor by doing the other one better (or, I should say, worse).

    As for filibusters of nominees, I don’t think they are appropriate for ANY Presidential nominees, but that’s not the world we live in.

  15. Again, Gerhardt:

    The percentage of President Clinton’s judicial nominations confirmed in 1997 — 47 percent — is significantly lower than the percentage of judicial confirmations for any president (except for Clinton’s own record the previous year) over the past four decades. In 1998, the percentage of judicial nominees confirmed climbed well back into the respectable range at 79.5 percent. Though 101 judges were confirmed in 1998, the numbers of confirmed judicial nominees in 1997 and 1999 were each lower than the number of President Reagan’s judicial nominees confirmed in 1988 (41) and the number of President Bush’s judicial nominees confirmed in 1992 (66), both of which were election years. (167-8).

    Now, he doesn’t distinguish between circuit and district judges, and that is relevant, but if Bush Senior had 66 judges confirmed in 1992 — 25 more than Reagan — it’s really hard to say that that was the beginning of the crisis. For that, you have to look to 1995.

  16. Again, Gerhardt:

    The percentage of President Clinton’s judicial nominations confirmed in 1997 — 47 percent — is significantly lower than the percentage of judicial confirmations for any president (except for Clinton’s own record the previous year) over the past four decades. In 1998, the percentage of judicial nominees confirmed climbed well back into the respectable range at 79.5 percent. Though 101 judges were confirmed in 1998, the numbers of confirmed judicial nominees in 1997 and 1999 were each lower than the number of President Reagan’s judicial nominees confirmed in 1988 (41) and the number of President Bush’s judicial nominees confirmed in 1992 (66), both of which were election years. (167-8).

    Now, he doesn’t distinguish between circuit and district judges, and that is relevant, but if Bush Senior had 66 judges confirmed in 1992 — 25 more than Reagan — it’s really hard to say that that was the beginning of the crisis. For that, you have to look to 1995.

  17. Now that I think about it: there must be a way to illuminate this. It would be interesting to compare Reagan’s success rate, Bush I’s and Clinton’s, in different Congresses. There isn’t a good baseline because the last time you had a Dem President and a Rep Senate was 1947-48, and that was a different universe. If you could find a statistically significant different approval rate between, say the first two years Bush I’s term versus the first two years of Reagan’s second term, that might be interesting. But I don’t think you’ll find that.

  18. Now that I think about it: there must be a way to illuminate this. It would be interesting to compare Reagan’s success rate, Bush I’s and Clinton’s, in different Congresses. There isn’t a good baseline because the last time you had a Dem President and a Rep Senate was 1947-48, and that was a different universe. If you could find a statistically significant different approval rate between, say the first two years Bush I’s term versus the first two years of Reagan’s second term, that might be interesting. But I don’t think you’ll find that.

  19. There’s quite a bit that data leaves out, particularly since it’s by year rather than by Congress and doesn’t consider how long nominations sat. (As you noted above, there’s a difference between an end-of-term nomination that doesn’t get through and an earlier one.)

    The overall confirmation rate for judges according to CRS were:
    Reagan – 85.67
    Bush – 75.9
    Clinton – 74.8
    You see the dramatic drop in overall confirmation rate from Reagan to Bush The GOP did one that one better, so Clinton’s appellate numbers were down, but his district numbers were up. The same thing happened with Bush 43 – circuit rate confirmation rates went down (to an all time low of 67%) as district court confirmation rates went up. and the average days from nomination to confirmation sky-rocketed (as per CRS and Brookings).

    Other measures of obstruction are also useful. Let’s look at nominees returned to the president (as reported by CRS): the 99th congress returned 24 of Reagan’s judicial nominees. The only other times pre-2000 it reached double digits were the 101tst Congress during G.H.W.Bush’s first two years (10 returns) and then the 104th through 106th of Clintons 11, 25, and 14). What happened under Bush 43? The returns in his first three Congresses: 63, 34, and 32. A dramatic increase, to go with the increased delay in confirmations.

    I’ve been writing extensively on judicial nominations for years. There’s plenty more where this came from, and when you look at it all, the picture is clear. The game of going after lower court nominations began in the late 1980s — right when Senate Democrats declared the strategy — and it’s gotten progressively worse since as each side has engaged in escalatory retaliation.

  20. There’s quite a bit that data leaves out, particularly since it’s by year rather than by Congress and doesn’t consider how long nominations sat. (As you noted above, there’s a difference between an end-of-term nomination that doesn’t get through and an earlier one.)

    The overall confirmation rate for judges according to CRS were:
    Reagan – 85.67
    Bush – 75.9
    Clinton – 74.8
    You see the dramatic drop in overall confirmation rate from Reagan to Bush The GOP did one that one better, so Clinton’s appellate numbers were down, but his district numbers were up. The same thing happened with Bush 43 – circuit rate confirmation rates went down (to an all time low of 67%) as district court confirmation rates went up. and the average days from nomination to confirmation sky-rocketed (as per CRS and Brookings).

    Other measures of obstruction are also useful. Let’s look at nominees returned to the president (as reported by CRS): the 99th congress returned 24 of Reagan’s judicial nominees. The only other times pre-2000 it reached double digits were the 101tst Congress during G.H.W.Bush’s first two years (10 returns) and then the 104th through 106th of Clintons 11, 25, and 14). What happened under Bush 43? The returns in his first three Congresses: 63, 34, and 32. A dramatic increase, to go with the increased delay in confirmations.

    I’ve been writing extensively on judicial nominations for years. There’s plenty more where this came from, and when you look at it all, the picture is clear. The game of going after lower court nominations began in the late 1980s — right when Senate Democrats declared the strategy — and it’s gotten progressively worse since as each side has engaged in escalatory retaliation.

  21. According to CRS, regarding Circuit Judge nominations, percentage of nominations approved. Table 2(a): Reagan — 81.4%; Bush — 77.4%; Clinton — 56.5%. And note that this number probably OVERESTIMATES Clinton’s relative percentage because in the first two years of his administration there was a Democratic Senate, and the Republicans were not (yet) filibustering judges, although they tried with Barkett (although it also includes 9 submitted by Clitnon in January 2001, which were obviously going nowhere.). The Democratic Senate for George HW Bush was so terrible that it — created 11 new circuit judgeships for him to appoint. (I hadn’t even remembered that.).

    The best comparison is HW Bush with Clinton post-1995. And there’s no comparison: there’s a difference between saying, “now that we are in the majority we are going to examine judges more closely” (Dems with HW) and “now that we are in the majority we are going to shut down the process entirely and leave it to a new Republican President.”

  22. According to CRS, regarding Circuit Judge nominations, percentage of nominations approved. Table 2(a): Reagan — 81.4%; Bush — 77.4%; Clinton — 56.5%. And note that this number probably OVERESTIMATES Clinton’s relative percentage because in the first two years of his administration there was a Democratic Senate, and the Republicans were not (yet) filibustering judges, although they tried with Barkett (although it also includes 9 submitted by Clitnon in January 2001, which were obviously going nowhere.). The Democratic Senate for George HW Bush was so terrible that it — created 11 new circuit judgeships for him to appoint. (I hadn’t even remembered that.).

    The best comparison is HW Bush with Clinton post-1995. And there’s no comparison: there’s a difference between saying, “now that we are in the majority we are going to examine judges more closely” (Dems with HW) and “now that we are in the majority we are going to shut down the process entirely and leave it to a new Republican President.”

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Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic – Land Use, the Environment and Loc…

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