How Vacancies on the D.C. Circuit Court Are Swaying Policy in America

The court's judges are obstructing appointments to a key regulatory body. But since the Senate won't confirm Obama's own judicial picks, the appointments will stay stuck.
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The Senate filibuster has been in the news as a tool by which the Republican Party is obstructing popular measures like background checks for gun purchasers. But another battle in the struggle against popular government is taking place three blocks from the Capitol at the E. Barrett Prettyman Courthouse, where the Court of Appeals for the D.C. Circuit sits. Nominations to that court, the second most important in the nation, have also been the subject of filibusters since 2008. Senate Republicans have succeeded in preventing President Obama from filling any of the four seats now open on this court. As a result, conservative judges on the court have been able to block a number of the administration's initiatives.

At this point, the D.C. Circuit ought to be called the Filibuster of Appeals.

We've read of the violence done to the National Labor Relations Board by the D.C. Circuit's December decision in Noel Canning v. NLRB. Having read that opinion repeatedly, I believe it does violence to the Constitution as well. The D.C. Circuit last year voided a Food and Drug Administration regulation requiring graphic warning labels on cigarette labels as a violation of tobacco companies' "free speech" rights -- to me, another grave misstep. And I feel the same way about the Circuit's decision this week in National Association of Manufacturers v. NLRB. In this case, three Republican nominees held that the First Amendment's right against "compelled speech" protects employers against an NLRB regulation requiring them to post a government poster notifying workers of their rights. The decision is another step on the long, doleful transformation of the First Amendment from an individual right of conscience into a shield against business regulation.

In 2011, the NLRB passed a rule requiring all employers subject to its authority to post an 11-by-17-inch poster reviewing the rights guaranteed workers by the National Labor Relations Act -- which include the right to join and form unions and to advocate for better wages and working conditions. (The poster also informers workers of their right to "[c]hoose not to do any of these activities, including joining or remaining a member of a union.")

The poster clearly indicates that it is an official government notification rather than the view of management. Nonetheless, industry groups argued that the company's First Amendment rights are compromised by being "forced" to speak against its will. This is a remarkable proposition. Governments routinely require employers to post various notices, ranging from a requirement of hand-washing in toilets to notifications of civil-rights protections. And courts have upheld them in the past. In fact, as the D.C. Circuit itself admits, that very court in 2003 upheld an executive order from President George W. Bush requiring government contractors to post a notice telling employees of their rights not to join a union. "[A]n employer's right to silence is sharply constrained in the labor context, and leaves it subject to a variety of burdens to post notices of rights and risks," it said.

Dude, that was totally then. The panel offers this (to me) completely unpersuasive distinction: the earlier case dealt only with the question of whether the President could require such a notice; the opponents of the rule argued that it was preempted by the National Labor Relations Act, which sets up the NLRB. The new rule was promulgated by the NLRB itself, the court said, and that changes the First Amendment calculus.

The panel relies on two First Amendment cases to support its decision -- West Virginia State Board of Education v. Barnette and Wooley v. Maynard. In Barnette, the Court held that the state of West Virginia could not expel Jehovah's Witness children from school if they refused to stand with their hands over their hearts and recite the Pledge of Allegiance. Justice Robert Jackson memorably wrote in Barnette, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein" In Wooley, the state of New Hampshire jailed a Jehovah's Witness for putting tape over the motto "Live Free or Die" on a state license plate. The Wooley Court reversed the conviction, reasoning that

A system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts. The right to speak and the right to refrain from speaking are complementary components of the broader concept of "individual freedom of mind."

Here's the old switcheroo: two wonderful cases dealing with lonely dissenters and the right of individual conscience have now become bulwarks against regulation of business. The poster in the current case did not require the employer to "proclaim their faith" in anything; nor did it commit the employer to supporting a "religious, political, or ideological" cause. It simply notified employers, in words clearly identified as government speech, of their rights under the law. And the Act itself, as well as the First Amendment, protects the employers' right to post signs urging workers not to join unions.

I have no doubt that the three judges on the panel are sincere in believing the First Amendment supports their interpretation; and recent Supreme Court decisions have gone a long way toward stating the marketing speech by business is as fully protected as political speech by individuals. In particular, Sorell v. IMS Health Inc. in 2010 held that data mining of physicians' prescription habits by pharmaceutical companies is protected speech, rather than a commercial transaction subject to reasonable regulation. For that reason, one can't say absolutely that only Republican nominees would have decided this case as the panel did.

Nonetheless, a different panel might at least have produced a separate opinion giving the other side. (There is a concurrence in NAM, but it is a concurrence urging an even more anti-NLRB result.) Appeals-court panels are drawn by lot, and it was luck of the draw that gave the panel three Republican appointees. Active Republican appointees outnumber Democratic ones currently 4-3.

And that brings me to the current state of the D.C. Circuit. Since Obama took office, four judgeships have opened up; filibusters have prevented the President from naming even one. If the four empty judgeships were filled, the lineup of active judges would be seven Democratic nominees to four Republican ones. The odds would have been a lot better of a different decision, or at least of a dissent. Since a majority vote of the active judges can vacate a panel decision, there would have been a chance of reconsideration by the full court sitting "en banc."

It is now a mere four months since Senate Majority Leader Harry Reid brokered a pathetic "compromise" on filibusters with his counterpart, Minority Leader Mitch McConnell. The "compromise" was supposed to make appeals-court nominations less contentious. But that was then: since January, the Senate Republicans have filibustered another highly qualified D.C. Circuit nominee, Caitlin Halligan, because as a state lawyer she once helped sue gun companies.

Obama has so far produced only one additional nominee to the D.C. Circuit. Deputy Solicitor General Sri Srinavasan, brilliantly qualified in every way, is also tuned to Republican preferences: a former clerk for Justice Sandra Day O'Connor, he worked for the Solicitor General's office under George W. Bush. Srinavasan is supposed to receive a vote by the Judiciary Committee next week; then we will see whether an excuse is found to filibuster him.

The Republican attitude toward the D.C. Circuit, however, is suggested by a bill proposed by Sen. Charles Grassley, ranking Republican on Judiciary. At Srinavasan's confirmation hearing, Grassley announced he was introducing a Court Efficiency Act that would abolish the three remaining vacancies on the Circuit. Franklin Roosevelt's court-packing plan was named the Judicial Procedures Reform Act of 1937; like that proposal, Grassley's is a sign that the fight over the courts is really a bare-knuckle political brawl.

So far, unfortunately, Obama and the Senate majority leadership have brought Nerf swords to the battle. Given what's at stake, Obama should produce nominees for the other three seats -- now, not later -- and Reid and the Democrats should announce that another Republican filibuster will prompt the so-called "nuclear option" -- a mid-session rules change to do away with filibusters on presidential nominations.

It is tempting to say that their timidity means they don't deserve to win. Unfortunately, the real losers -- in NAM v. NLRB as in Noel Canning -- are America's workers, who deserve better.

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Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore and lives in Washington, D.C. His new book is American Epic: Reading the U.S. Constitution.

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