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Michal Benari Archives

Michal Benari
Summer Intern, Manhattan Institute's Center for Legal Policy

A third federal appeals court declared President Obama's recess appointments to the National Labor Relations Board (NLRB), a 5-member board which referees labor-management disputes and oversees union elections, to be unconstitutional, on the grounds that the Senate was not officially in recess during the extended holiday break in January 2012 when these three contentious vacancies were filled. The significance of the ruling was depicted on Wednesday, as the Fourth Circuit refused to enforce two NLRB decisions, together with the dissent in federal appeals courts in both Philadelphia and the District of Columbia. Subsequently, the U.S. Supreme Court has granted cert. to hear the D.C. case.

Significantly however, Obama may have achieved a political resolution to this legal dispute, as the president has nominated two new NLRB appointees to replace those opposed by the Senate Republicans, namely union lawyer Richard Griffin and Deputy Labor Secretary Sharon Block, to be replaced by former AFL-CIO lawyer Nancy Schiffer and Kent Hirozawa. Obama has thereby (tactically) cleared the way for a confirmation vote next week and perhaps rendered the Supreme Court's appraisal moot.

Crucially, this was not the only controversy to preoccupy the Senate this week, as the appointment of Richard Cordray as director of the Consumer Financial Protection Bureau, was confirmed on Tuesday afternoon with a vote of 66 in favor and 34 opposed. Cordray's appointment too occurred during the questioned January recess of 2012. Moreover, a series of compromises are to proceed this week, as it is reported that Senate Republicans will allow votes to proceed for President Obama's top choices to run the Labor Department, Environmental Protection Agency, and Export-Import Bank of the United States.

Senate Majority Leader Harry Reid [D-Nev] said "I think we get what we want, they get what they want. Not a bad deal."

Please visit our past discussions on recess appointments for a history of the arguments that preceded this latest compromise.

Michal Benari
Summer Intern, Manhattan Institute's Center for Legal Policy

In February, the Tennessee legislature approved a constitutional amendment (subject to voter approval in 2014) to end the state's use of the Missouri Plan to select state judges. Under the existing plan, a non-partisan Judicial Nominating Commission reviews and recommends judicial candidates for the governor's selection. The Commission was allowed to expire at the end of June and the legislature's amendment, if passed by voters, would make that change permanent. Thereby, the governor will have the independent duty and discretion to appoint appellate court judges. The transition is consistent with Tennessee's intention to move to a federal model of judicial appointment, whereby the governor's appointments are to be subject to confirmation by the legislature.

The amendment has generated backlash from advocates of the Missouri Plan, especially with a vacancy looming in the Tennessee Supreme Court, as Justice Janice Holder is retiring in August 2014. According to Colin Levy, Democrats and trial lawyers are claiming the absence of a Commission, renders the state without a method to fill the vacancy. Yet crucially, Levy declares that these groups are "angling to get the Missouri Plan reinstated on a 'temporary' basis" in the hopes of achieving its permanent restoration. Vanderbilt University law professor, Brian Fitzpatrick, points out that there has been an effective appointment process since 2009 and the governor is authorized to act independently when the Commission fails to submit a list of candidates. Fitzpatrick cites:

[I]f the judicial nominating commission does not furnish a list of three (3) nominees to the governor within sixty (60) days after receipt of written notice from the governor that vacancy has occurred, then the governor may fill the vacancy by appointing any person who is duly licensed to practice in this state and who is fully qualified under the constitution and statutes of this state to fill the office.

Michal Benari
Summer Intern, Manhattan Institute's Center for Legal Policy

It is commonly presumed that one must be a lawyer in order to present an argument before the U.S. Supreme Court; yet until this week, this was a mere convention. On Monday, the Supreme Court revised its 80-page rule book, and established this principle as a legal requirement. This is the first revision since 2010, which dealt with the practice of amicus curiae briefs under Rule 37.3(a). The constraint was inscribed in Rule 28.8, which the Court described as simply codifying a "long-standing practice."

It has been more than three decades since a non-lawyer argued before the Justices, the last of which was Samuel H. Sloan, who represented himself in 1978. Sloan declared that his independence was not "an ego thing," but rather he felt he had the means to succeed, which was later affirmed by his 9-0 victory.

This rule aims to protect and enhance the best interests of the litigant, as Stephen M. Shapiro, a veteran of 30 arguments before the Court and co-author of Supreme Court Practice, emphasizes that experience, qualifications and knowledge are required to successfully present a case and that without such benefits it "would be a very difficult chore." Richard Lazarus, a Harvard Law professor, expressed his disapproval of the notion to appear before the Court independent of counsel to be "a stupid, crazy idea."

Sloan conversely argues that "the Supreme Court should remain, in principle, open to everybody," thereby echoing the sentiments of many who oppose this law and view it as an infringement of civil liberties. The new rule, opponents argue, could seemingly create disparities, and render those less financially secure with no alternative but to acquire council, even if they could have successfully argued autonomously.

In practice however, this rule has invoked limited change.




Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.