By MARK KARLIN,
The hijacking of the federal judiciary by the Republican Party – through the appointment of aggressive partisan judges combined with preventing votes on nominations by Democratic presidents – is the hidden cancer on US government. The sudden nixing of recess appointments last week by a DC appellate court panel of three Republican-appointed judges (in this case Obama filling empty National Labor Relations Board (NLRB) seats and appointing Richard Cordray to chair the Consumer Financial Protection Bureau (CFPB) during a recess to circumvent endless Republican sabotage in the Senate) is symbolic of the macro-subversion of justice through manipulation of the federal bench, including, of course the Supreme Court.
It should be remembered, for those who have forgotten, that almost no legal scholars or analysts – conservative or liberal – thought that the Supreme Court would rule on the 2000 presidential ballot recount dispute in Florida. But Antonin Scalia, the exhaustively partisan hack who impresses people with his intellectually sounding illogical and unconstitutional blather, stopped the recount faster than you can say “stolen election.”
Then he went onto gather his partisan five votes to permanently halt the recount in an act of Republican hypocrisy usurping states’ rights that was limited, in the opinion of the felonius five, to apply only to the one case of – in effect — appointing George W. Bush as president.
Enter David Sentelle, Chief Judge of the Court of Appeals for the District of Columbia Circuit. Not only is the DC appellate court the most powerful in the land, it is essentially the pre-trial hearing ground for government cases before they reach the Supreme Court (if the Supreme Court chooses to hear an appeal).
Last week, Sentelle headed the three-judge panel that voided the NLRB and CFPB appointments. As we know, unlike elected officials, federal judges are appointed for life (unless they are impeached by Congress, resign or die). Sentelle, ironically, was first appointed to the federal DC circuit court when Scalia was named by Reagan to the Supreme Court in 1987. Reagan had appointed Sentelle, at the urging of then North Carolina Senator Jesse Helms, to the United States District Court for the Western District of North Carolina in 1985.
Once Sentelle was on the DC circuit of appeals, he became the Zelig of partisan decisions. It would be a rather lengthy list to see the damage Sentelle has done to justice. BuzzFlash over the years has written numerous commentaries about Sentelle and his right wing sidekick semi-retired (senior status) Federal Judge Laurence Silberman (a mentor of Clarence Thomas).
But to revisit just a few of Sentelle’s GOP water carrying rulings, we can start with his leading the overturning of the convictions of Oliver North and John Poindexter as obtained by Lawrence Walsh, independent prosecutor for the Iran-Contra scandal.
Sentelle changed the course of US history when he appointed Ken Starr to oversee the so-called Whitewater investigation of the Clintons. Robert B. Fiske, who was the original independent counsel overseeing the Whitewater charges was going to exonerate the Clintons and end the investigation. Senator Helms (who died in 2008) and fellow North Carolina Senator Lauch Faircloth met with Sentelle for lunch in 1994 and reportedly told him to in essence fire Fiske and appoint Ken Starr (a reliable hound dog to continue the GOP impeachment Jihad), which Sentelle dutifully carried out. This political action changed a nearly closed case (Whitewater) into an open-ended witch hunt to find a reason to impeach Bill Clinton.
Who then supervised Ken Starr? Why a federal DC appellate court special division headed by Sentelle – which allowed Starr to proceed on an investigation that had morphed into what Joe Conason and Gene Lyons called in a must-read book: “The Hunting of the President: The Ten-Year Campaign to Destroy Bill and Hillary Clinton.” Clinton would have never been impeached if it were not for Sentelle carrying out the political dirty work of Helms and Faircloth on behalf of the Republicans on Capitol Hill.
We could go on almost endlessly about the large swathe of constitutional damage that Sentelle has done on behalf of partisan Republican politics.
But the NLRB and CFPB recess appointment ruling is indicative of how the Republicans have placed Manchurian Candidates on the federal bench who have – and will – cause decades of politically biased ruin to a democracy based on an unbiased reading of the Constitution.
The website AllGov.com provides details of the ruling last week:
Relying on the difference between “the” and “a,” a panel of Republican judges in Washington, DC, last week struck down three recess appointments made last January by President Barack Obama to the National Labor Relations Board (NLRB), based on a novel legal theory that would invalidate most of the hundreds of recess appointments Presidents have made over the years. The panel was comprised of judges David Sentelle (appointed by President Reagan in 1987), Karen L. Henderson (George H.W. Bush, 1990) and Thomas B. Griffith (George W. Bush, 2005).
If the ruling survives an appeal, it would invalidate all 300 decisions issued by the NLRB since last January, leave the Board with only one validly appointed member (Chairman Mark Gaston Pearce), and threaten other recess appointments as well, like that of Richard Cordray to chair the Consumer Financial Protection Bureau.
The court made its ruling in an appeal by Pepsi bottler Noel Canning of an NLRB decision that the company had improperly refused to sign a collective bargaining agreement. Although the court found that the evidence supported the board’s decision, it struck it down because the board’s quorum relied on Obama’s recess appointments, which it invalidated. The NLRB has five members, and needs a quorum of three to issue rulings.
AllGov.com further notes:
Dismissing the hundreds of recess appointments made by recent presidents—Obama has made 32, George W. Bush made 171, Bill Clinton 139, George H.W. Bush 77, and Ronald Reagan 240—the court wrote that, “Recent presidents are doing no more than interpreting the Constitution. While we recognize that all branches of government must of necessity exercise their understanding of the Constitution in order to perform their duties faithfully thereto, ultimately it is our role to discern the authoritative meaning of the supreme law.”/
The Sentelle panel “based this ruling, which contradicts about 150 years of actual practice,” AllGov.com analyzed, “as well as a 2004 en banc decision from the 11th Circuit in Atlanta, Evans v. Stephens, based on two uses of the word ‘the.’”
For whatever reasons, recess appointments were not struck down under Republican administrations – and the presence of David Sentelle in this reversal of precedent is enough to send up a billowing smoke signal of concern.
The calamitous impact of the strategic long-range control of the top levels of the federal bench by Republicans continues unabated.
A Januray 5 Los Angeles Times article, “Obama struggles to nominate, confirm federal judges,” notes the conundrum faced by Obama (and by other recent Democratic presidents):
In September 2005, John G. Roberts Jr., a judge on the U.S. Court of Appeals for the District of Columbia, moved up a few blocks onto Capitol Hill to become chief justice of the United States. His seat on the appeals court has remained unfilled ever since.
The vacant seat symbolizes the problems that President Obama had in his first term in quickly nominating judges and winning even routine confirmations in the face of a determined Republican minority. He has had fewer judges confirmed than any first-term president in a quarter of a century, and he is the first chief executive unable to appoint anyone to the powerful D.C. Circuit Court of Appeals, which decides challenges to federal regulations.
This is also true of appointments to regulatory agencies such as the National Labor Relations Board and the head of the new Consumer Financial Protection Bureau. The GOP uses the threat of filibusters, which Harry Reid just caved in on ending again, to keep the government from functioning in key areas they want to block, to ensure that positions are not filled.
Meanwhile, Democrats regularly act with deference toward nominees during Republican administrations (with some rare exceptions of defiance).
After all, in 1987, Reagan-appointee Sentelle was confirmed by a by-partisan vote of 87-0 to serve on the United States Court of Appeals for the District of Columbia Circuit.
The impact of a stacked Republican judiciary continues to be a blight upon the Constitution and an ongoing assault upon an independent federal bench. Given Harry Reid’s cave on filibuster reform, relief does not appear to be on the way — for either judiciary or regulatory appointments.