Senate Majority Leader Harry Reid doesn't like the direction the federal judiciary is heading, so he has come up with a variant of court-packing to achieve his results. He took the Senate floor Wednesday to defend the use of the "nuclear option" to bypass Senate rules and force through President Obama's nominees to the U.S. Court of Appeals for the District of Columbia Circuit.
That would be the same court whose three-member panel in late January ruled, unanimously, that Mr. Obama's faux "recess appointments" of Big Labor-approved nominees to the National Labor Relations Board were unconstitutional. "You have a majority in that court that is wreaking havoc in the country," Mr. Reid complained, citing only the NLRB ruling. "For the first time in 230 years, they ruled the president can't make a recess appointment."
The three judges accused of havoc-wreaking merely made the point, obvious to English-speakers everywhere, that the president is obliged to wait for a recess before he can make a recess appointment. Mr. Obama didn't want to wait. He installed NLRB members in January 2012 while the Senate was in pro forma session. The White House was very much aware the radical appointee wouldn't get past a Republican filibuster. Rather than find appropriate choices, the president bypassed the constitutional process.
There was nothing extraordinary in the D.C. Circuit's reasoning that the Constitution must be followed. Last week, a federal appeals court in Philadelphia also ruled against Mr. Obama's NLRB "recess" appointments on the same grounds.
Mr. Reid's rant disturbed the peace of the Senate amid debate over how quickly to proceed with the nomination of Deputy Solicitor General Sri Srinivasan to the 11-member D.C. appeals court, which currently has four vacancies. Mr. Reid's claim that the vacancies must be filled at once to restore ideological "balance" to the court is patently false, given that four of its seven judges are appointees of Republican presidents and three were appointed by Democrats. Four more liberal judges would likely guarantee a rubber stamp for Mr. Obama's agenda. Some "balance."
Mr. Reid is trying to follow the example of Franklin D. Roosevelt, who dreamed up the concept of outcome-based adjudication with his 1937 attempt to pack the U.S. Supreme Court. With his New Deal agenda stymied by the high court, President Roosevelt proposed that he be granted the power to appoint up to six additional judges to the nine-member court. The new judges would then rubber-stamp the New Deal. Though FDR's scheme was not implemented, it succeeded. A cowed judiciary allowed the White House agenda to go forward.
Senate Minority Leader Mitch McConnell observes that Mr. Reid hopes to achieve a similar result. "Their view is that we had better confirm the people they want when they want them," he says, "or they will break the rules of the Senate to change the rules so we can't stop them."
Alexander Hamilton famously observed that the advise and consent clause in the Constitution was meant to serve as "an excellent check upon a spirit of favoritism in the president." Mr. Reid should put away his nuclear option and further study his duty under the Constitution.
The Washington Times
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