One day after Senate Republicans caved to
Senate Majority Leader Harry Reid’s (D-NV) threat to permanently eliminate filibusters on executive branch nominees
— unless Republicans stopped using the filibuster to block confirmations to
seven top government positions — two Republican judges handed down a decision
that would have further endangered workers
rights and the continued viability of the union movement had Senate Republicans not surrendered. Although the decision was
handed one day after the Senate deal effectively defanged most of its impact,
federal appeals court decisions typically take months to decide, so these two
Republican judges knew they would reach this result long before the Senate
acted.
The decision, by the
United States Court of Appeals for the Fourth Circuit, is the third is a string
of decisions by Republican judges that would have effectively shut down most of
American labor law but for the Senate GOP’s surrender to Reid earlier this
week. These decisions hold that President Obama lacked the authority to make
three recess appointments to the National Labor Relations Board. Without these
appointees, however, the Board would lack the minimum number of members
necessary to operate — and because the NLRB has exclusive authority to enforce
many crucial rights for workers in the workplace, those rights would effectively become
unenforceable without a functioning NLRB.
The Fourth Circuit is among
the most Democratic federal appeals
courts in the country. Yet, in a stroke of bad luck for the NLRB and
for American workers, two of the three judges randomly assigned to hear this
case are Republicans. To date, nine court of appeals judges have considered the
validity of these particular recess appointments. All six Republicans deemed
them invalid. All three Democrats held them to be valid.
Interestingly, this
partisan divide arose only after President Obama took office. When a similar
conflict arose in 2004 concerning President Bush’s recess appointment of Judge
William Pryor to the Eleventh Circuit, every single one of the
Eleventh Circuit’s Republicans who considered the question
upheld Bush’s actions. The Democratic appointees on that court split, with one
judge voting to block the appointment and another voting that Eleventh Circuit
should ask another court to decide the question — in part because “[i]t is
simply inappropriate for the members of a court to sit in judgment of a
colleague’s legitimacy.” The remaining Democratic appointees, which includes one conservative judge appointed by
President Clinton to avoid Senate gridlock, voted with the Republicans.
In case anyone still
believes that legal arguments matter in a politically charged case such as the
three cases invalidating Obama’s nominations, they can read why these
Republican judges’ decision are legally doubtful here and here. At this point,
however, it is difficult to escape the conclusion that such legal arguments do
not actually matter. Republican judges define President Obama’s authoirty in a
way that benefits the Republican Party. Democratic judges define it in a way
that benefits Democrats and traditional Democratic allies. And the rest of us
are left wondering why the only unelected branch of government should enjoy
that power.
No comments:
Post a Comment