In a decision that was both wide-ranging and as intensly partisan and activist as Bush v. Gore, the DC Circuit Court of Appeals today delivered an opinion which, in effect, overturns the landmark Supreme Court case of Brown v. Board of Education, which ruled that segregated schools are “inherently unequal”.
OK, I admit it. My first paragraph (and my title) are pure hyperbole. And quasi-snark. But, in many ways, it is true. And, an indication of just how much the decision in Canning v. NLRB (PDF)reflects both judicial activism and partisanship of the worst kind. Follow me below the squiggle as we go down the rabbit hole on this one.
Article II, Section 2, Clause 3 of the US Constitution states:
The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session
On January 4, 2012, after Senate Republicans had blocked action on confirming three nominees to fill vacancies on the National Labor Relations Board, President Obama exercised the recess appointment power to appoint Sharon Block, Richard Griffin and Terence Flynn to the three vacancies on the NLRB. Without those appointees, the NLRB had been effectively blocked from any action, since there were only two confirmed members of the Board and its rules require a quorum of three for any action.
In dealing with a challenge to a ruling from that Board, the Court of Appeals for the DC Circuit made a decision which was stunningly partisan and overbroad. They ruled that the recess appointment power is limited to only those periods between when one Congress has adjourned for good and the before the next Congress has been seated (an intersessional recess). Therefore, the appointments were invalid, as were all actions taken by the Board following those appointments.
Yet, there have been many previous recess appointments which were not intersessional. Bush made a number of them, including his appointment of John Bolton to be our UN Ambassador, as well as a number of judges. But, going back into history, one can find an even more famous recess appointment: Earl Warren.
You see, Warren's predecessor, Fred Vinson, died suddenly in September 1953. The Court was about to begin its new term, which would include reargument in the School Desegregation cases, which had been held over for rearguemnt from the previous term. President Eisenhower wanted to have the Court at full strength, particularly for those cases, which were scheduled for reargument on December 8, 1953. So, basically for administrative convenience, Eisenhower recess appointed Warren (the Senate was in a recess at the time) and, concurrently, sent a nomination to the Senate.
Warren took his seat on the Court on October 5, 1953, sat on the School Desegregation Case oral arguments and was an active participant in the argument, and fully participated in the Court's conferences on the case. Eventually, the Senate came back into session, held its hearings, and, on March 1, 1954, confirmed Warren's appointment as Chief Justice of the United States.
Now, longstanding Court precedent holds that a Justice may only participate in a decision where they have heard the oral arguments, and where that oral argument has occurred after the appointment of the Justice was effective. The Senate's recess in September/October 1953 was NOT intersessional. An intersessional recess would not occur until December 1954, when that Congress adjourned sine die. So, according to the logic of the DC Circuit in Canning, Warren's recess appointment was NOT valid, and he did not really become CJ until his Senate confirmation in March. And, according to their logic, any action he took prior to that confirmation was invalid. That means that his paritipation in oral arguments, in conferences and in writing the opinion itself was invalid. Therefore, Brown v. Board of Education should be a nullity in the law.
Of course, this is an absurdity. But, it serves to illustrate the arrogance, stupidity and partisanness of this very dumb decision. It may well be that the Supreme Court will find that the recess appointments to the NLRB were invalid for other reasons. But, this judicial activist decision was so overbroad and overboard as to really call into question the judicial ethics of the three appointees who signed this opinion.
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