Saturday, January 26, 2013

Right-wing D.C. Circuit

Granted that yesterday's D.C. Circuit decision throwing out many NLRB decisions because the President's recess appointments that permitted a quorum were found invalid was rendered by two of the longest-serving active judges on the court, one being the chief judge--in the federal courts, the chief judge's position is filled by seniority--President Obama would still be well advised to strive harder to make some timely appointments and push harder for judicial confirmations.  That is to say, this case might still have ended up before Judges Sentelle and Henderson, two known reactionaries, but that does not excuse the President's lassitude in naming judges nor his apparent unwillingness to fight more for their seating.

The 47-page decision is filled with "original intent" talk, which proudly declares that what happened, not at the Constitutional Convention in 1787, but in the early administrations and Congresses, has more relevance for us today that what occurred in the second half of the 20th century.  My first issue with this line of thinking is that of the historian: despite some written records, we do not have as clear a picture of exactly what informed decisions by all three branches in those early days as decisions like this one would assume. One might well append to any mention of "original intent" the phrase my criminal law professor employed when any such stock term was mentioned: "whatever that is."

For one thing, the Congressional proceedings were recorded often by independent reporters who did not feel obliged to record the sessions verbatim and indeed exercised a good deal of discretion in determining what they felt was important and, even more, with what they happened to agree.  Recall, too, that in the 1790s, we had a wildly free-wheeling press--in terms of unofficial reports--that was highly partisan and proud of it.  Despite our usually unanimous disdain for the Sedition Act of 1798, it did not spring up entirely from John Adams's head without some cause, even if a far from justifiable one. 

Second, it should be unnecessary to point out that conditions were far different in those days, as were standard governmental practices.  Presidents of both parties have been making recess appointments in large numbers in recent decades.  In response to that reality--responding to clear need--we get the kind of thinking that was characteristic of the reactionary Supreme Court of the 1930s, also impervious to a critical economic situation. 

Third, the decision does not refer to what was actually discussed at the 1787 Convention because as most know, it was conducted in secret and no transcripts or any reports were ever released.  We have recollections of James Madison from his diary, among others, much of it edited in the 1920s by the scholar Max Farrand.  While frequently utilized, this is not what any good reporter would regard as a clearly accurate source. 

In view of the exalted authority reactionaries afford the "original intent" of "the Framers"--assuming, as I do not, that it is readily discernible, one might also observe that the whole Constitutional Convention of 1787 was regarded by many at the time as of dubious legality because it was conducted in secret and since it had purportedly been called to revise the Articles of Confederation, and clearly went quite a bit beyond that brief. Too, the questionable ratification processes in several states also made the Constitution worthy of somewhat less than divine regard. 

At one point in the decision, Hamilton is quoted, from a letter written in 1799, when he was out of office and probably recognized that he had little chance of regaining political power.  Much as I admire Hamilton generally--Ron Chernow's magisterial biography has begun to revive his huge importance even as the reputation of his adversary Jefferson has come into more question--we do not know what particular situation he was considering when he wrote what he did in his letter, nor does his letter have legal authority. We might also recall Hamilton's famous description of the judiciary in The Federalist (presumably seeking to calm the concerns of those who feared a powerful judiciary) as "the least dangerous branch"--oh, really, Mr. H?

The decision also quotes Marshall on the authority of the judicial department twice, which makes me think the D.C. Circuit realized it was treading on quaky ground and sought to bolster its argument by pounding the table twice with John Marshall's words.

Lastly, the D.C. Circuit--or at least two of the three judges--went beyond what was needed to decide the case by adding on that any recess appointment could only fill a vacancy that "happened" during the recess. The third judge found this extension too much and only agreed to the first holding. Other circuits have not agreed with this position, so we find that the Supreme Court will review the question anew, and perhaps face up to recent history despite the "original intent" proclivities of a few of the more troglodytic members of that court.

This all makes one adopt a slightly more indulgent view of the British unwritten constitution. Blind adherence to precedent--especially when the precedent is far from either clear or established--does not make our written constitutional tradition stronger.

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