<i>NLRB v. Noel Canning</i> Tests the Limits of Judicial Memory

Abstract

The Supreme Court’s 2014 NLRB v. Noel Canning ruling, which was ostensibly based on “historic practice,” has passed its first anniversary. The high court’s conjuring of an absolutist 3-day Senate recess minimum conjoined with a “presumptive 10-day” Senate recess rule (with an added “unusual occurrence” complexity) continues to be analyzed. The practical effects of the revocations of Barack Obama’s 2012 NLRB recess appointments continue to impact. However, Noel Canning’s additional revocations of Lyndon Johnson’s 1964 judicial recess appoint civil-rights legends Leon Higginbotham, Spottswood Robinson and David Rabinovtiz have gone unnoticed. The three historic judicial commissions, signed by President Johnson during an eight day intersession recess of the 88th Senate, were “rendered illegitimate” for failing the majority’s “presumptive 10-day” recess test. The eight day intercession recess was judged 48 hours too short by Steven Breyer. Just as the NLRB’s “invalid board members” issued an “invalid” order to the Noel Canning Company, so too these three “invalid” judges issued many invalid decisions, orders, and judgments while sitting illegally on the federal bench. The ruling forever tarnished the historic judicial legacies of Leon Higginbotham, Spottswood Robinson, and David Rabinovitz. (Higginbotham and Robinson were subsequently confirmed to tenured posts but Rabinovitz was obstructed in the Senate by Mississippi’s James Eastland and North Carolina’s Sam Ervin. Breyer thus says Rabinovtiz was never a judge.) This Essay briefly introduces each of these three remarkable civil rights advocates. The Essay frames the historic context of LBJ’s January 1964 recess appointment actions. Six weeks after John Kennedy’s murder, President Johnson sent a strong message that his presidency would be committed to civil rights. The Essay includes links to taped recordings of relevant LBJ Oval Office telephone conversations. A ‘presumptive’ explanation is offered as to why, before this work, no reporting or analysis had referenced the judgeship revocations. Steven Breyer’s majority opinion carefully masked this Noel Canning consequence by dismissing certain unnamed illegitimate appointments as “anomalies.” The furtive revocations serve to draw attention to a broader concern about the Noel Canning ruling. After emphasizing that that “[t]here is a great deal of history to consider here,” Justice Breyer carefully avoided even one mention of a recess appointed judge. There have been over 300 recess commissioned judges, including 15 Supreme Court Justices. Justice Breyer was also careful to avoid acknowledging the rich history of presidential employment of recess appointments to transform the judiciary. Such transformative appointments have included Augustus Hand, William Brennan, Earl Warren, Irving Ben Cooper, William Hastie, David Bazelon, Thurgood Marshall, Griffin Bell, and Skelly Wright. As this author argued to the high court in an amicus brief supporting the Obama appointments and in the first work in this series (a 2014 Cardozo Law Review denovo article), Presidents have often used the alternative appointment method to force integration (racial, religious and gender) of the federal judiciary – against reactionary forces in the Senate and on the federal bench. The first female federal judges, the first black federal judges, the first Jewish federal judges all rose to the bench by recess commission. Leon Higginbotham, David Rabinovtiz, and Spottswood Robinson’s recess appointments – now declared “illegitimate” – are just three examples.Adapting the prose of Milan Kundera, the Essay suggests that the majority purposely evaded “the struggle of memory against forgetting.” Noel Canning was indeed about historic practice – old-style airbrushing of history made impossible by our digital age. The Justices sought to avoid the conflict-of-interest patent in the judicial review of the alternative appointment process by which Presidents have forced transformation and integration of the judiciary. The Supreme Court was determined to answer the political question. Noel Canning significantly shifted the balance of power between the executive and legislative branches in order to give the Justices the last word in democracy’s discourse. The result was replacement of a textual commitment of presidential appointment discretion with Steven Breyer’s vague and unworkable recess rule. Again turning to Milan Kundera, the Essay considers the paradox inherent the progressive academy’s “excess of intelligence” in Noel Canning commentary that attempts to “justify the rule of non-thought.”