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.