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Sat Jan 26, 2013, 10:02 AM

Republican judges like trained seals; David Sentelle in the center ring with the ball on his nose

from Charles P. Pierce at Esquire: http://www.esquire.com/blogs/politics/david-sentelle-case-012513


David Sentelle Is A (republican) Hack

The next time I hear some lefty mooing about the president’s having let down the side on something or another, it better be about something of substance, like the Keystone XL pipeline, or I’m going to boot said lefty’s hindquarters in the general direction of the federal appeals court of the District Of Columbia, which today laid down the most singular piece of partisan hackery to come out of a court since Antonin Scalia picked the previous president. For precise legal analysis, I'll leave it to Scott at LG&M to explain. This, children, is what you get when you operate politically under the theory that They're All The Same. You get 20 or 30 years of primarily Republican judges acting primarily as Republicans, drawn from the legal chop-shops in the conservative movement bubble, and doing their partisan duty like performing seals.

David Sentelle would the the one in the center ring with the ball on his nose. As the Center For American Progress points out, this is career Tenther who believes the Constitution as written on a napkin at a Chamber of Commerce luncheon. Small wonder he went batty on people appointed to the NLRB. This is a guy who thinks the NLRB itself is constitutionally illegitimate. It is not an accident that Sentelle's decision is directed at appointees to the regulatory agencies. He doesn't think the agencies should exist.

But Sentelle's career as a Republican hack goes back longer than that. For starters, he was instrumental in hamstringing Iran-Contra special prosecutor Lawrence Walsh's efforts to bring the Reagan Administration to account. He stepped in for the judge who was presiding over the special prosecutor's office when the special prosecutor started indicting some of William Rehnquist's dinner guests: (http://www.consortiumnews.com/1990s/consor42.html)

In his book Firewall, Walsh called those judges "a powerful band of Republican appointees who waited like the strategic reserves of an embattled army." A leader of this partisan faction was Judge Laurence H. Silberman, an obstreperous conservative. Silberman had served as a foreign policy advisor to Reagan's 1980 campaign and took part in a controversial meeting with an Iranian emissary behind President Carter's back during the Iran-hostage crisis. At one point during the Iran-contra scandal, Silberman berated MacKinnon. "At a D.C. circuit conference, he (Silberman) had gotten into a shouting match about independent counsel with Judge George MacKinnon," Walsh wrote. "Silberman not only had hostile views but seemed to hold them in anger." On the North appeal in 1990, Silberman teamed up with Sentelle to overturn North's convictions. Sentelle also served on a second three-judge panel that threw out Poindexter's convictions. Despite the North-Poindexter setbacks, Walsh kept digging. By 1991, his investigators had discovered hidden documents revealing an elaborate Iran-contra cover-up. In effect, Walsh learned that North had told the truth when he claimed to be the "fall guy" for the scandal. In 1992, Walsh confronted former Defense Secretary Caspar Weinberger with evidence of his role in the cover-up. When Weinberger refused to admit he had lied about his knowledge of Reagan's Iran-contra decisions, Walsh indicted Weinberger on perjury and obstruction charges. The Weinberger indictment touched off a conservative firestorm against Walsh and, less visibly, against his protector, Judge MacKinnon. Walsh's breakthrough on the cover-up threatened to tarnish Reagan's legacy and complicated President Bush's re-election strategies in 1992. Rehnquist, a conservative Republican who had been elevated to the chief justice spot by Reagan, moved to replace MacKinnon. In an interview, Walsh told me that he received a call from MacKinnon sometime in early 1992 with the news that Rehnquist was easing MacKinnon out and bringing Sentelle in. "He (MacKinnon) was giving me a heads up," Walsh said, adding that it was clear that MacKinnon would have liked to continue in the post. "He really loved that job," Walsh said.


And, again, alas, we must return to the Golden Era Of Beltway Crazee — the 1990s, and the pursuit of Bill Clinton and, eventually, of his penis. Sentelle, who was promoted in politics by the late pathogen, Jesse Helms, was still the judge who was overseeing the Whitewater special prosecutor's office, and he was instrumental in shuffling the original occupant of that office, Robert Fiske, who was preparing to chuck the whole Whitewater scandal as so much malarkey, in favor of the bedsniffin' yahoo, Ken Starr, and we know what ensued thereafter. To say Sentelle was involved is to understate things considerably . . .


read more: http://www.esquire.com/blogs/politics/david-sentelle-case-012513


TOD

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Reply Republican judges like trained seals; David Sentelle in the center ring with the ball on his nose (Original post)
bigtree Jan 2013 OP
pampango Jan 2013 #1
octoberlib Jan 2013 #2
onenote Jan 2013 #3
bigtree Jan 2013 #5
onenote Jan 2013 #6
bigtree Jan 2013 #7
Teamster Jeff Jan 2013 #4
shanti Jan 2013 #8

Response to bigtree (Original post)

Sat Jan 26, 2013, 10:08 AM

1. "...who believes the Constitution as written on a napkin at a Chamber of Commerce luncheon ..."

Just wonderful. Thanks for posting, bigtree.

Of course we still have the 'republican hacks' on the Supreme Court to deal with on this one.

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Response to bigtree (Original post)

Sat Jan 26, 2013, 10:10 AM

2. K&R!

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Response to bigtree (Original post)

Sat Jan 26, 2013, 10:19 AM

3. Yes, Sentelle is a hack. But to a certain degree, this is a case of what goes around comes around

I've posted several analyses of the court's decision and expressed my opinion that its reasoning will be reversed at least in part by the SCOTUS. But the analyses in the esquire blog linked in the OP leaves out one salient fact: like it or not, it was the Democrats that started the practice of using pro forma sessions to prevent the exercise of the recess appointment power. It was in 2007 and we controlled the Senate and wanted to block chimpy from making recess appointments. And we succeeded, for which I am grateful. But the problem with these sorts of tactics is that both sides can play. So, when we regained the White House and wanted President Obama to be able to make recess appointments to overcome Senate filibusters of nominations to agencies like the NLRB and the CFPB, we ran into a Constitutional dilemma: the Constitution clearly states that neither the Senate nor the House can adjourn for more than 3 days without the consent of the other body. Since the repub controlled House wasn't going to consent to the Senate adjourning for more than 3 days, we had to shift gears and take the position that the same pro forma sessions we had relied on to block recess appointments by chimpy now were ineffective when used to block President Obama. That's not the strongest position to be arguing from, unfortunately. And its why, I suspect, that the SCOTUS will reverse some or all of the DC Circuit's overly narrow reading of the recess appointments clause, but will still end up finding that the appointments made by President Obama did not occur during a recess.

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Response to onenote (Reply #3)

Sat Jan 26, 2013, 11:01 AM

5. it should come down to the intent of the President to overcome the deliberate obstruction

. . . I think it will come down to a question of whether the move was necessary, and, if the President had other avenues.

This ruling falls on its face when the judge questions the President's right to define what a recess is. Hell, the president can recess Congress- nothing can prevent him from recessing them -- so I'd think the law already recognizes that he can determine when Congress is in recess.


“(The President) shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”

Article II, section 3, clause 3

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Response to bigtree (Reply #5)

Sat Jan 26, 2013, 12:27 PM

6. It will only come down to that if the SCOTUS disagrees with the "intersession" limitation.

That is the first major hurdle and the outcome of SCOTUS review of that question is far from certain. (While the interpretation of the Recess Clause as applying only to vacancies arising after the recess commenced is an even bigger hurdle, I think its highly likely that the SCOTUS will reject that reading of the clause).

If the Court agrees that only intersession recesses matter for purposes of the Recess Clause one could still argue that the only reason that Congress didn't recess sine die until January 3 (when it both ended one session and almost simultaneously convened the next one) was to circumvent the exercise of the recess appointment power. But i see no chance that the court will find that it has the power to conclude that Congress has adjourned sine die when it has not done so expressly. Adjourning sine die is a big deal and even if Congress (as it did here) indicates that it is adjourning with no intent to do anything other than hold twice weekly pro forma sessions, that decision can always be reversed so long as Congress hasn't adjourned sine die, so no court is going to decide that Congress has ended its session if Congress hasn't said it has.

As for the President's power to adjourn both houses -- it is not an unbounded power. It applies only if there is a disagreement between the two houses with respect to adjournment. Obviously, in this instance, there was not disagreement between the houses if the question is whether they had adjourned sine die. Neither had done so, so there is no disagreement.

So it comes down to whether intrasession recesses can trigger the exercise of the recess appointment power. I think it does, history suggests it does, but the outcome in the SCOTUS is up in the air. Assuming the SCOTUS finds intrasession recesses can trigger the recess appointment clause, the question is: was the Senate in recess when the recess appointments were made. The President claimed they were, but he wasn't relying on his power to adjourn where there is a disagreement because there was no disagreement: both the House and Senate were operating under similar schedules with pro forma sessions. And, of course, the President didn't even try to exercise his power to adjourn both houses. Thus, it comes down to whether pro forma sessions, where it is stated that there is no intention to do any business, prevent there from being a recess of sufficient length to trigger the recess power. That requires the court to decide first whether there is a minimum length for a "recess" for purposes of the recess clause. That's probably not something the court is anxious to tackle and it presents a further dilemma: It seems counter-intuitive to prescribe a minimum length for an intersession recess (since that would mean that some intersession recesses aren't "recesses"), but it also makes little sense to treat intrasession breaks of any length (15 minutes) as triggering the recess clause. Which is why the Court might be inclined to adopt the "only intersession recesses count" interpretation. (It avoids this dilemma.)

But if the Court decides that recess appointments can be made during intrasession recesses of a certain minimum length, the last question is whether the pro-forma session with no intent to conduct business interrupts a recess. I think there is going to be a division in the court on that question (if they get to it). I think the correct answer is that it does not, but not because the President says it doesn't but simply because when that is the case, the purpose is, as you correctly suggest, to frustrate the exercise of the recess appointment power.

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Response to onenote (Reply #6)

Sat Jan 26, 2013, 09:05 PM

7. so, we have Congress using the phony session to prevent what would be a routine recess appointment

. . . and the president working to circumvent that obstruction. Does Congress really have the right to use the fake session just to circumvent an appointment that would be functionally routine and with precedent. Nowhere in the past have presidents had to justify such appointments even though it's an obvious dodge of the confirmation process. I think to find that this appointment was wrong would be to find that any recess appointment was wrong, since it's a procedure which is transparently employed and no different in almost every respect than the 'technical' one Pres. Obama employed. For the purposes and intent of these appointments (to circumvent Congress' obstruction) a 'technical' recess is as good as a real one. Carving out some special place for a normal recess just to invalidate these appointments doesn't make the others more legitimate. It would make them a mockery; at that point, a legal onem instead of just a political one.

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Response to bigtree (Original post)

Sat Jan 26, 2013, 10:19 AM

4. K&R

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Response to bigtree (Original post)

Sat Jan 26, 2013, 09:27 PM

8. according to wikipedia

he will be taking "senior status" next month. this means that while still working pt (for ft pay), his position will then become vacant, so obama can then appoint someone more appropriate....we can hope.

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