Day: December 5, 2012

More from the Noel Canning argument: No doubt much to her surprise, Beth Brinkmann was questioned intensively about the meaning of the phrase “which may happen” in the Recess Appointments Clause. Both Judge Sentelle and (to a lesser extent) Judge Griffith were unimpressed by the longstanding executive branch position, dating back to Attorney General Wirt in 1823, that this phrase means vacancies that “happen to exist” during the recess.

In response, Brinkmann pointed out that Wirt was advising President Monroe, whom she identified either as a “framer” or a “founder” (I can’t remember which) of the Constitution.  This fact, she suggested, bolstered the credibility of Wirt’s interpretation.

Monroe was not at the 1787 Philadelphia Convention, but he was a delegate to the Virginia convention that ratified the Constitution. Monroe voted against ratification, contending that it gave the federal government too much power. I am fairly sure that there is no evidence of Monroe expressing any view about the RAC at the ratifying convention and, for that matter, I am not aware of Monroe commenting on the RAC at any time in his life.

So what are we to make of the fact that, more than 30 years after the drafting and ratification of the Constitution, Monroe received an opinion from his Attorney General that the RAC applied to all vacancies that “happen to exist,” rather than only those that “happen to arise,” during the Senate’s recess? By Wirt’s own admission, his interpretation relied on the “reason and spirit” of the Constitution, while the contrary interpretation was more consistent with its “letter.” Moreover, although not mentioned (and possibly not known) by Wirt, there were at least two actual framers, Edmund Randolph and Alexander Hamilton, who made far more contemporaneous statements in support of the “happen to arise” interpretation.

Presumably Brinkmann is claiming that if Wirt’s interpretation had been wrong, Monroe would have rushed into Wirt’s office saying something like the following: “Bill- even though I voted against ratifying the Constitution because it gave too much power to the central government, I specifically remember thinking ‘thank goodness it doesn’t give the president the power to circumvent the Senate whenever it fails to confirm his nominees.’ Now take this opinion back and redo it. And by the way, you might want to consider whether joining the Freemasons is a good career move.”

I’d say the probative value of this “evidence” is between slim and none. And Slim’s out of town.

There were many important issues raised in today’s D.C. Circuit argument in Noel Canning v. NLRB, the recess appointments case, but lets start with some unimportant ones.

How do you pronounce Harry Daugherty’s name? The Justice Department lawyer representing NLRB, Beth Brinkmann, pronounced it “Dockerty,” and the panel went along with that. I have always pronounced it “Doh-her-tee” or “Daw-her-tee” (according to Wikipedia, its “daw-HER-tee”). I think if DOJ is going to rely so much on Daugherty’s opinion, it should at least know how to pronounce his name. Exit question- how do they pronounce it on “Boardwalk Empire”?

How come this can’t be the Goya Rice case? According to Noel Francisco, who appeared on behalf of Noel Canning and the Chamber of Commerce, the Chamber has standing to intervene in the case because it has at least two members, Noel Canning and Goya Rice, currently participating in proceedings before the NLRB. It would be a lot easier to explain the importance of the Recess Appointments Clause to my children if Goya Rice were the named party—they have never heard of Noel Canning, but we go through a box of Goya Rice every week.

Why isn’t Senate Legal Counsel here? Judge Griffith, himself a former Senate Legal Counsel, asked this question during the argument. Griffith was making the rhetorical point that the Senate had not taken a position in the case, but the literal answer to his question was that Senate Legal Counsel was in an overflow courtroom downstairs. By the time he and the Deputy Senate Legal Counsel arrived, there was no more room in the main courtroom (though Senator McConnell, who arrived afterward, apparently had a reserved seat). I sat in the overflow courtroom as well, where a watchful clerk made sure no one was live blogging the proceedings.

What’s so great about unanimous consent anyway? Francisco argued that since nominees are usually confirmed by unanimous consent, the fact that the Senate could only act by unanimous consent during its pro forma sessions did not prevent the President from getting nominees confirmed. Judges Griffith and Sentelle were at immediate pains to point out that not all nominees are approved by unanimous consent. Sentelle, who was confirmed by an 87-0 vote, reiterated the point, possibly throwing a meaningful look at Griffith (there was only audio in the overflow courtroom). “I said usually,” stressed Francisco. “Lets move on,” said Griffith, who was confirmed 73-24, good-naturedly. Judge Henderson, who was confirmed by unanimous consent, tactfully remained silent.