Senate GOP: Activist Federal Judges Wanted

The hypocrisy of a group of Republicans who are supporting the lawsuit against Obama's recess appointments

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There is something deliciously hypocritical about the brief letter 40 Senate Republicans made public Friday announcing their intention to file a "friend of the court" brief in one of the federal lawsuits challenging President Barack Obama's recent recess appointments to the Consumer Financial Protection Bureau and the National Labor Relations Board. The gang that decries "judicial activism" at every opportunity now wants the federal courts to activate on their behalf to broker a political dispute between the executive and legislative branches.

Sen. Charles Grassley (R-Iowa) signed the letter. In June 2010, he said he was worried that United States Supreme Court nominee Elena Kagan would not show a proper amount of "judicial restraint." Sen. John Cornyn (R-Texas) also signed. He's the former judge who wondered aloud in 2010 whether courthouse violence wasn't linked in some way to judges who make "political decisions." Sen. Orrin Hatch (R-Utah) signed, too. Last year, he said that the "Constitution belongs to the people, not to judges."

Sen. Tom Coburn (R-Okla.) is also on board. In 2005, decrying "judicial activism," he proclaimed that "all legislative power belongs to Congress." And Sen. Mike Crapo (R-Idaho), too. He voted against both of President Obama's Supreme Court nominations because of what he called "increasing judicial activism in this country." Sen Lindsey Graham (R-South Carolina)? He signed, too. In 2010, he said "all of us abhor judicial activism because it's a threat to society in general when an unelected judge takes on a role outside of their sphere."

I mention these particular senators from among the 40 signees because they are all on the Senate Judiciary Committee, which means they have had a front-row seat over the past few years to the interaction between the White House and Congress when it comes to appointees and nominations. They know exactly how many of the President's qualified judicial nominees have been held up by the threat of filibuster. And they know, deep down in their hearts, that "judicial activism" is a made-up political word, full of sound and fury but signifying nothing.

I don't know how the federal courts will react to the pending lawsuits challenging the recess appointment, for example, of Richard Cordray to the CFPB. He's already on the job, focusing upon the current housing crisis, and it's easy to imagine the judiciary choosing to stay out of the fight. I can much more clearly see a federal trial judge calling this matter a "political one," best left to the other two branches to resolve, than I can see that same judge issuing a partisan ruling that dictates a judicial rule for recess appointments.

We'll know soon enough. In the meantime, if I were a Democrat in the Senate, or a White House tribune, I would be responding to the GOP lawsuit letter by loudly doubling down on the concept of having judges determine political procedure. Republicans want the courts involved in recess appointments? Fine. Then they should embrace the notion that the federal courts ought to decide whether the filibuster is constitutional as well. After all, it has less explicit constitutional support than does a recess appointment, does it not?

If we're going to have a lawsuit about recess appointments let's have one about filibusters. And then we can have one that requires the Senate to take up approved judicial nominations from the Judiciary Committee in a timely manner. Then we can have a lawsuit challenging the ancient use, the "informal custom" it is otherwise called, of the "blue slip," which harms the national interest at the expense of personal prerogative. There are dozens, maybe hundreds, of dysfunctional components to current Congressional practice. Let's litigate them all!

It's hard to know whether the irony of all of this has escaped the men and women who signed the GOP letter. And it's hard to know how they will react when the poor judge who has to deal with this recess nonsense decides the dispute is, in fact, a non-justiciable case. They won't be able to call that judge an activist then, will they? Or maybe they will. They surely will call her that if the judge hears the case and rules in favor of the White House. And they surely won't if the judge rules their way. Politics is as politics does.

A "friend of the court" brief, which is only what the Senate Republicans have promised so far, is like a postcard instead of a love letter. It tells the court that you care enough about the matter to express an opinion but not enough to enter the arena as an actual litigant. Maybe that's how the letter writers will try to wiggle out of the inherent contradiction between their eternal anguish over "judicial activism" and their current attempt to curry it. Then again, maybe not.