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Kendall: Grassley aims for GOP political spin on federal judiciary

Friday, May 10, 2013
The U.S. Court of Appeals for the D.C. Circuit’s stunning decision this week to strike down a National Labor Relations Board rule requiring employers to post signs reminding workers of their right to organize, is a clear indication of why this D.C. court has become an ideological battleground.
Senate Republicans, in particular, are going to great lengths to preserve their partisan advantage on a court widely regarded as second to the Supreme Court in importance.
First, Republicans manufactured a controversy over Caitlin Halligan, President Barack Obama’s well-qualified nominee to the D.C. Circuit, and then torpedoed her confirmation through a partisan filibuster.
Then the Republican members of the Senate Judiciary Committee, led by its ranking member, Chuck Grassley (R-Iowa), took a startling step: They introduced legislation that would eliminate three of the 11 judicial seats on the D.C. Circuit, claiming the court’s caseload does not justify those seats. Grassley is proposing to cut almost 30 percent of the D.C. Circuit’s seats without any study showing that such a gutting of the court is warranted.
This is partisan showboating, not serious legislation. If Grassley were serious about his Orwellian-named “Court Efficiency Act,” he would not have ignored recent recommendations from the Judicial Conference, the judicial branch body charged by Congress with making policy related to administration of the federal court system, about staffing needs of the federal bench. He would not have equated D.C. Circuit cases, described by former D.C. Circuit Chief Judge Patricia Wald as “the most complex, time-consuming, labyrinthine disputes,” with the rank-and-file disputes often heard by other federal appellate courts.
Chief Justice John Roberts, another former D.C. Circuit judge, agrees with Wald. “It is when you look at the docket,” Roberts said, “that you really see the differences between the D.C. Circuit and other courts.”
Grassley also would not have proposed that his bill take effect immediately on passage, rather than at the start of the next presidential term – which is the usual practice.
So what is Grassley serious about? It looks like he is intent on maintaining conservative dominance over the D.C. Circuit.
As Pulitzer prize-winning columnist Steven Pearlstein explained in the Washington Post, “Dysfunctional government has become the strategic goal of the radical fringe [on the political right]. … 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.”
This war on federal agencies is succeeding because the D.C. Circuit is dominated by conservatives — four of the court’s seven current active judges are Republican appointees, as are five of the six senior judges, who also regularly hear cases.
Ideology matters because the D.C. Circuit has exclusive jurisdiction over many federal laws and regulations involving a host of issues including national security, environmental protection, food and drug safety and employment laws.
Three Republican-appointed judges Tuesday invalidated the NLRB rule requiring employers to post signs notifying employees of their right to unionize under federal labor law, signs similar to those required to be posted about minimum wage laws and workplace health and safety.
This was not the first time the D.C. Circuit has taken on the NLRB. In a January ruling, Noel Canning v. NLRB, three Republican appointees held unconstitutional Obama’s recess appointment of three members to the board. The decision was contrary to long-standing practice of the executive branch, in conflict with the decisions of other federal appellate courts and without support in the Constitution’s text or history.
The consequences could be significant ‑ threatening the NRLB’s ability to act. It has already prompted companies to attempt to void or block NLRB rulings. This ruling also called into question the constitutionality of a president’s recess appointments – including Obama’s appointment of the first director of the Consumer Finance Protection Bureau, which could limit that new agency’s ability to fulfill its mission.
The Obama administration has appealed to the Supreme Court, the only body that can overturn a ruling by the D.C. Circuit.
There’s also the August 2012 D.C. Circuit decision, which prompted Pearlstein’s “judicial jihad” column. There, a 2-1 conservative majority overturned the Environmental Protection Agency’s “good neighbor” rule. That regulation, more than a decade in the making, constrained individual states’ contribution to air pollution levels in neighboring downwind states. With this ruling, conservatives on the D.C. Circuit struck a serious blow to the Obama administration’s efforts to curb pollution and combat climate change.
It makes twisted political sense that Grassley and his colleagues would fight furiously to protect their ideological advantage on a court that is advancing an anti-regulatory agenda without congressional Republicans having to lift a finger – but that doesn’t make these efforts right.
The Constitution gives the Senate the duty of providing “advice and consent” on the president’s judicial nominees. It doesn’t give Grassley – or any other senator – the right to play political games that hurt the judiciary and the country.