NLRB v. Noel Canning Exposes Judicial Incapacity: “Junior Varsity Politicians” Foul the President’s Textual Appointment Discretion

This Article is offered in tribute to, and provides summary biographies of, civil rights legends Leon Higginbotham, Spottswood Robinson, and David Rabinovitz whose judicial recess appointments were invalidated by National Labor Relations Board v. Noel Canning. It also honors President Lyndon Johnson, who made the bold decision within just six weeks of inheriting the Oval Office, to force racial and religious integration of the federal judiciary by signing the recess commissions. Justice Breyer’s majority opinion furtively invalidated the judicial recess appointments of the lost-passed Higginbotham, Robinson and Rabinovitz. The judicial appointments, made by President Johnson during an 8-day Senate recess in January 1964, were effectively “rendered illegitimate.” The majority opinion marginalized the civil rights legends’ appointments as mere “historic anomalies” not worthy of recognition much less discussion. This article asks how Breyer came to establish the strange duration of the Noel Canning “presumptive 10-day” recess rule. The article suggests that the 10-day recess period may have been crafted to protect the legitimacy of a sitting federal judge who George W. Bush recess commissioned to the Eleventh Circuit during a 10-day intra-session recess in 2004. Breyer’s 10-day rule was exactly what was needed to protect Eleventh Circuit Judge William Pryor’s past judicial legacy and insulate his continued service on both the federal appellate bench and the U.S. Sentencing Commission (the controversial inter-branch agency was a Breyer brainchild) from related controversy. The article is unique in attempting analysis of Justice Breyer’s “presumptive 10 day” recess rule in context of its vague “unusual occurrence” allowance. Breyer envisions future courts ex post reviewing future recess appointments made by Presidents during 4-9 “emergency exception” windows: We therefore conclude, in light of historical practice, that a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause. We add the word “presumptively” to leave open the possibility that some very unusual circumstance - a national catastrophe, for instance, that renders the Senate unavailable but calls for an urgent response - could demand the exercise of the recess-appointment power during a shorter break.It was telling that Justice Breyer was moved to add “presumptive” modifier to his made-up ten-day rule together with the “unusual occurrence” four- to nine-day window for national emergencies. Perhaps this was a subconscious manifestation of a latent nonjusticiability, political-question instinct in Breyer. Such a nonjusticiability instinct was well described by Alexander Bickel as “the anxiety, not so much that the judicial judgment will be ignored but that it should but will not be.” As the third article in this author’s Noel Canning trilogy, coming after publications with online journals of Cardozo and Houston, this work further explains why Noel Canning presented the Supreme Court with a conflict of interest and a nonjusticiable political question that should not have been reviewed by any level of the judiciary. The conclusion of Justice Antonin Scalia’s four-justice concurrence directly advanced a non-justiciability, political-question determination - albeit only as an alternative to his robust, and wrongheaded, defense of the D.C. Circuit’s uber-textualist interpretation. Justice Scalia explained that there is “‘no judicially discoverable and manageable standard for resolving’ whether a particular break was long enough to trigger the recess-appointment power, making that a nonjusticiable political question.” And even Breyer’s majority opinion was forced to make a fallback nonjusticiability determination when attempting to justify its rejection of the Solicitor General’s request for a “realistic” factual appraisal of the House and Senate’s pro forma session shenanigans. Breyer’s unworkable recess rule insures that future Supreme Court majorities will have opportunity to revisit Noel Canning. This Article concludes with the suggestion of a litmus test for the 45th President’s federal judicial selection process: Does the potential judicial nominee respect Alexander Bickel’s wise nonjusticiability, political-question counsel for judges to stay out of such political branch struggles?