The issue is arcane, but the consequences are huge. It’s a case study of how the Senate Republican minority’s abuse of the filibuster to block appointees, and the failure to fill vacancies on what is often described as the nation’s second highest court combined to produce potentially disastrous consequences.
Hundreds of decisions by the National Labor Relations Board (NLRB) could be invalidated and the entire agency effectively shut down if a ruling by three Republican appointees to the U.S. Court of Appeals for the District of Columbia Circuit is upheld by the U.S. Supreme Court.
The decision involves three appointees to the NLRB, a referee for disputes in the American workplace whose power extends beyond unionized workplaces. The five-member NLRB board can’t function without at least three vacancies filled. But for months Senate Republicans blocked three nominations by President Obama.
Finally, the president resorted to what is known as a “recess appointment” – naming his nominees to the NLRB while the Senate was away for the holidays. But Republicans used a technicality to try to pretend the Senate still was in session: Every few days someone would stop by the near-empty Senate chamber, declare the Senate “in session” and then promptly declare the session over.
This sham was good enough for three Republican-appointed D.C. Circuit judges. Ignoring longstanding practice and precedent, they ruled that the recess appointments were unconstitutional. Moreover, the ruling could invalidate all the decisions made by those three recess appointees over the last year.
But wait, there’s more: Since one seat on the NLRB already is vacant that means, if the decision is upheld, the NLRB will have only one member. As so long as it doesn’t have 3 members, it can’t function at all.
And still more: Richard Corday, who heads the Consumer Financial Protection Board, was appointed the same way. That happened after Senate Republicans first made clear they would never allow a vote on President Obama’s first choice, Elizabeth Warren (a decision they may now regret, given the job she ultimately got instead) and then stalled the nomination of Cordray. A separate case is challenging the Corday appointment.
None of this should come as any surprise. Last October, Pulitzer-prize winner Steven Pearlstein, then a columnist for The Washington Post, blasted the D.C. Circuit for its extreme right-wing activism.
…[D]ysfunctional government has become the strategic goal of the radical fringe that has taken over the Republican party. After all, a government that can’t accomplish anything is a government that nobody will like, nobody will pay for and nobody will want to work for. For tea party conservatives, what could be better than that?
Nowhere has this strategy been pursued with more fervor, or more success, than the U.S. Court of Appeals for the District of Columbia Circuit, where a new breed of activist judges are waging a determined and largely successful war on federal regulatory agencies.
It didn’t have to be this way. As Pearlstein also pointed out:
The prospect that some balance might be restored to the nation’s second-most powerful court has long since faded after Senate Republicans successfully filibustered every nominee put forward by President Obama for the three vacant seats on the D.C. Circuit.
That was then. Soon there will be four vacant seats.
Here’s why that matters: The 11-member D.C. Circuit currently has eight active members—five Republican appointees and three Democratic appointees—and, as noted above, three vacancies (the fourth vacancy will occur on February 12th). If the president had been able to nominate and confirm three people to fill the vacancies, the Court would have had a Democratic majority. That means either the panel decision could have been different or the entire eleven-member court may have been more likely to review the panel's decision – with a six-to-five majority appointed by Democratic presidents. But since that didn’t happen, Pearlstein wrote, there was only one other alternative:
The only hope now is that Chief Judge David Sentelle and some of the court’s more intellectually honest conservatives will move to rein in the judicial radicals before they turn the courts into just another dysfunctional branch of a dysfunctional government.
Guess who wrote the decision in the NLRB case: David Sentelle.