Judge Brown begins with a bit of autobiography:

In the summer of 1974, while waiting to start classes at UCLA, I was lucky enough to obtain a summer job house sitting in the pleasant, upscale neighborhood of Pasadena. Known mostly for its Rose Parade and Rose Bowl, Pasadena is one of the more scenic exurbs of Los Angeles. I inhabited a sparsely furnished, modest-but-pricey bungalow set among the lush landscape typical of southern California. This is a place where Birds of Paradise grow ten feet tall and the magenta blossoms of Bougainvillea fall like lavish draperies from redwood garden trellises. After staying in the house more than a month and spending a restless night listening to the agitated thrashings of the jacaranda trees in a fitful wind, I stumbled bleary-eyed into the kitchen, looked out the window, and stopped — utterly dumbfounded. There — looking like it was but a few feet beyond the back fence — stood a mountain. Not a foothill. Not an unobtrusive mesa. A mountain! Closer inspection revealed not a lone majestic peak, but a whole mountain range I later identified as the San Gabriels. In those days, the air in the Los Angeles basin was so thick with smog that a mountain, or even a nearby mountain range, could simply disappear.

Although the Los Angeles basin was among the most notorious examples of the phenomenon, it was by no means unique and certainly not the worst. It was this crisis of ambient air quality that precipitated the enactment of the Clean Air Act (CAA). But as the CAA’s history, language, and structure make clear, Congress never intended the Act to serve as an environmental cure-all. It was targeted legislation designed to remedy a particular wrong: the harmful direct effects of poisoned air on human beings and their local environs. This is what Congress understood as “air pollution which may reasonably be anticipated to endanger public health” in the tailpipe emissions provision, 42 U.S.C. § 7521(a)(1). The Supreme Court in Massachusetts v. EPA, 549 U.S. 497 (2007), however, concluded otherwise. In dicta too suggestive to ignore, the Court implicitly assumed that climate change could provide the basis for an endangerment finding in the tailpipe context. Bound as I am by Massachusetts, I reluctantly concur with the Panel’s determination that EPA may regulate GHGs in tailpipe emissions. But I do not choose to go quietly.

Judge Brown’s dissent ends with a wink at the per curiam panel opinion’s quotation of Schoolhouse Rock, but she finds another song more apt:

In denying rehearing en banc, this Court has read Massachusetts to its illogical ends and it is American industry that will have to pay. That this Court did so is unsurprising, but certainly not fated. Massachusetts does not compel this outcome for the [Prevention of Significant Deterioration] and Title V provisions. Had this Court interrogated its own assumptions and yielded not to Massachusetts’s telos but sound constitutional principles, it would have found that the matter properly belongs before Congress, not courts or agencies. As Schoolhouse Rock long ago explained:

Ring one, Executive,
Two is Legislative, that’s Congress.
Ring three, Judiciary.
See it’s kind of like my circus, circus.

And what a circus it is.

Judge Kavanaugh’s dissent, though somewhat less personal, is no less punchy.  Here is an excerpt:

In an unusual twist, EPA openly acknowledged the unreasonableness – indeed, the absurdity – caused by its interpretation of the statute. If the Prevention of Significant Deterioration program were interpreted to require preconstruction permits based on emissions of greenhouse gases, EPA candidly stated that the result would be “so contrary to what Congress had in mind – and that in fact so undermines what Congress attempted to accomplish with the PSD requirements – that it should be avoided under the ‘absurd results’ doctrine.”

But faced with those absurd consequences from the broader interpretation of the statute, EPA surprisingly did not choose the seemingly obvious option of adopting the narrower and more sensible interpretation of the term “air pollutant” for the Prevention of Significant Deterioration statute – the  interpretation limited to NAAQS air pollutants. Instead, EPA plowed ahead with the broader interpretation [any harmful airborne compound, including carbon dioxide]. And then, to try to deal with the absurd repercussions of that interpretation for the Prevention of Significant Deterioration statute, EPA re-wrote the very specific 250-ton trigger in the permitting requirement of the statute, unilaterally raising that trigger for greenhouse gas emissions from 250 tons to 100,000 tons – a 400-fold increase. EPA believed that re-writing the statute’s permitting-triggers provision in this way would reduce the number of facilities that would require pre-construction permits and thereby “tailor” the absurdity – that is, alleviate some of the absurdity caused by interpreting “air pollutant” to cover greenhouse gases.

This is a very strange way to interpret a statute.

* * *

[T]he ultimate clincher in this case is one simple point: EPA
chose an admittedly absurd reading over a perfectly natural
reading of the relevant statutory text. An agency cannot do
that.

* * *

To be sure, courts must be wary of undue interference with an agency’s action implementing its statutory responsibilities. But at the same time, undue deference or abdication to an agency carries its own systemic costs. If a court mistakenly allows an agency’s transgression of statutory limits, then we green-light a significant shift of power from the Legislative Branch to the Executive Branch. The Framers of the Constitution did not grant the Executive Branch the authority to set economic and social policy as it sees fit. Rather, the Framers gave Congress, along with the President, that legislative role (subject to constitutional limits), and they assigned the Executive Branch the executive power to issue rules and enforce the law within the limits set by Congress.

Panel Opinion: Coalition for Responsible Regulation, Inc. v. EPA, No. 09-1322 (per curiam, joined by Sentelle, C.J., Rogers & Tatel, JJ.)

Denial of Rehearing En Banc: Coalition for Responsible Regulation, Inc. v. EPA, No. 09-1322 (per curiam, with concurrence by Sentelle, C.J., joined by Rogers & Tatel, JJ.; dissent by Brown, J., and dissent by Kavanaugh, J.)

by Victor Williams

The political-question doctrine of judicial restraint is fundamental to conservative jurisprudence and American self-governance.  Answers to political questions, such as the Republic’s processes of impeachments and appointments, should come only from elected political leaders.  Powell v. McCormick, as referenced by the D.C. Circuit Review, is an important precedent in the development of the political-question doctrine.  It is not controlling, however, as to whether Noel Canning v. NLRB’s challenge to the president’s recess appointments is nonjusticiable.

The president alone determines if the Senate is unavailable to render advisory consent under Article II, Section 2; such unavailability triggers his Clause 3 recess commissioning power.  Article I, Section 5’s  Adjournment Consent Clause and Rules of Proceeding Clause do not restrict – or even apply to — the scope of the president’s Article II, Section 2 appointment authority.  At the kind invitation of the D.C. Circuit Review; I defend this position by expanding on my Amicus Brief filed in Noel Canning below.

First, some recent history.  When Harry Reid began scheduling pro forma sessions in late 2007 to frustrate presidential recess appointments, I encouraged President George W. Bush to ignore the Majority Leader’s too-clever bluff and assertively use his recess appointment power.  By not doing so, Bush II forfeited the Executive’s recess appointment authority for the remainder of his term.  In 2010, the Tea-Party infused House began regularly withholding adjournment consent from the upper chamber, purposely forcing the Senate back into sham scheduling to intentionally frustrate President Barack Obama’s recess appointment authority. Scores of critically important vacancies harmed Executive, agency, and judicial functions.  In a series of National Law Journal, Huffington Post and Jurist columns, I urged the president to aggressively fight Senate confirmation battles while regularizing the use of his recess authority.

In January 2012, President Obama signed commissions to the NLRB during a twenty-day break in which the Senate continued to hold sham sessions every three days.  In doing so, Obama restored quorum and legal authority to the NLRB and preserved the Framers’ dual appointment design (ordinary and recess) for himself and future presidents.  President Obama also framed a further challenge to the faulty premise of the congressional obstructionists’ scheduling gimmick.  There is no three-day recess minimum needed to trigger the president’s term appointment authority.

Unfortunately, attorneys, scholars, commentators, and now the Noel Canning Petitioners continue to parrot the three-day recess minimum myth.  They mistakenly reference the Adjournment Consent Clause as authority.  Advocates often wrongly rely on a weak inference in a poorly-crafted 1993 DOJ trial brief.  Former Deputy Solicitor General Neal Katyal made this mistake during 2010 New Process Steel v. NLRB oral arguments in response to Chief Justice John Roberts’ direct question as to why President Obama was not using recess appointments to maintain the NLRB’s quorum.

The Article I, Section 5 adjournment provision only requires each house of Congress to obtain the other’s consent before adjourning for more than three days.  The misapplication of the clause (and thus the three-day recess minimum myth) is built on conjecture that any break of three days or less is de minimis for adjournment consent and also for analysis of recess appointments.  The same Article I provision also restricts either house from moving “to any other Place than in which the two Houses shall be sitting.” Clearly, the Article I, Section 5 provision is meant only as an internal comity restriction of the Legislative Branch.  It only describes internal operations and obligations of the Congress. The Framers intended Congress to work together in time and place.  And, the chambers are autonomous in making their own procedural rules.  None of Article I, Section 5 applies to, or restricts, the president’s independent Article II, Section 2, Clause 3 recess appointment power.

By the structural logic and functional operation of the Recess Appointment Clause, a Senate on “recess” is unavailable to render Clause 2 advisory consent, or Clause 3 advice as to its unavailability.  That is the inherent nature of ‘unavailability.’  It is the president alone who has Article II discretionary power both to determine the Senate’s unavailability and sign term commissions.  It is a political power not a legal power.

Chief Justice John Marshall provided guidance as to the “rule of law to guide the judiciary in the exercise of its jurisdiction” in such cases.  It has none:  “By the constitution of the United States, the president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.”  Marbury v. Madison, 5 U.S. 137, 165 (1803).

Petitioner’s Reply Brief (pg.41, note 19) attempts to circumvent the political question argument by invoking Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012).  However, Zivotofsky involved a non-relevant issue of statutory interpretation and validity.  Noel Canning, by contrast, involves a textbook example of a political question; the president’s exercise of unilateral appointment authority textually committed to him by the Constitution.

I argue in the Brief that Nixon v. United States, 506 U.S. 224 (1993) (which applied Baker v. Carr, 369, U.S. 186 (1962)), is relevant and controlling.  The Supreme Court rejected review of a debenched federal judge’s challenge to the Senate’s exercise of its (Article I, Section 3, Clause 6) “sole” duty to “try” all impeachments.  The Supreme Court determined that the judiciary could not review a procedurally problematic Senate impeachment trial process in which an “evidence committee” of only 12 senators heard testimony while 88 senators avoided jury duty.  88 senators were not in the Senate courtroom when the conflicting evidence was presented.  But all 100 Senators were ultimately allowed to vote — thumbs up or down — rendering the final removal verdict.  The Supreme Court determined that it did not have authority to review the shortcut Senate trial process used to strip U.S. District Judge Walter Nixon of his tenured office and salary.  The Court explicitly ruled “the word ‘try’ in the Impeachment Trial Clause does not provide an identifiable textual limit on the authority which is committed to the Senate.” Id. at 239.  The nation’s highest court would not conjure a definition of the word “try.”

Neither should the judiciary review the president’s exercise of his exclusive textual authority to sign term appointments.  Neither should the court attempt to find a definition of the term “recess.”  Just like the word “try” in the Impeachment Trial Clause, the word “recess” in the Recess Appointment Clause “does not provide an identifiable textual limit on the authority which is committed to the [president].” Nixon, 506 U.S. at 239.

A court’s process of defining “recess” would require it to assign constitutional weight to various types of Senate “unavailability,” including breaks, adjournments, holidays, suspensions and delays.  The court would need to examine “recess” in the political and practical context of the Senate’s pro forma sessions.   The judiciary should not allow itself to be dragged into the densest of modern political thickets – partisan appointment conflict.  Once enmeshed, the court would certainly be asked, in future litigation, to fully review the merits of other constitutional congressional dysfunctions; such as the increasingly frequency of Senate confirmation filibusters.  Indeed, Common Cause’s challenge to the Senate’s use of the filibuster procedure is now well underway in the U.S. District Court for the District of Columbia.  The Senate formally invoked political-question nonjusticiability as a defense in seeking dismissal. Common Cause v. Biden, U.S.D.C.- D.C. (No. 12–0775(EGS) (Def. Br. at 40).  The Senate has not taken a position in the Noel Canning adjudication although Majority Leader Harry Reid praised President Obama’s 2012 recess appointments and encouraged him to recess all of the blocked nominees.

In further opposition to my Amicus Brief in Noel Canning, the Petitioners (Reply Brief, pg. 41, note 19) raises two past recess appointment challenges which were decided by sister circuits on the merits. See United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985) (en banc) and United States v. Allocco, 305 F.2d 704 (2d Cir. 1962).  However, each case serves as important contrast to demonstrate that Noel Canning raises a political question.  Neither the Woodley nor the Allocco recess appointments had any degree of underlying political branch conflict or controversy sufficient to provide context for a nonjusticiable determination.

The political branch conflict, surrounding and resulting in the January 4, 2012 NLRB appointments, was historically substantial. The conflict was far more pronounced even than the filibuster controversy forming the basis for the Eleventh Circuit’s discrete political question determination in Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004) (en banc).  William Pryor’s prolonged partisan confirmation tribulation was only fractionally as conflictive and controversial as the underlying political events leader to the NLRB appointments.

The Justice Department’s merits arguments in its Noel Canning briefs are very strong.  They build on the equally strong January 2012 reasoning of White House Counsel Kathryn Ruemmler and the Justice Department’s Office of Legal Counsel.   My Amicus Brief is offered as an alternative theory to defend the president’s appointments.  Attorneys (even government attorneys) may argue in the alternative (e.g. Obama’s Affordable Care Act individual mandate was argued to be valid under the commerce clause and/or valid under the taxing power).

At oral argument on December 5, the D.C. Circuit panel appeared hostile to the DOJ’s excellent merits arguments. An alternative theory might be helpful.  The three-judge panel also seemed to be searching for a limiting principle to the president’s unilateral recess appointment power.  Such limitation is found in the temporary nature of the appointments, the Senate’s willingness to cooperate with future ordinary appointments, and the Congress’ other structural legislative checks on the Executive and the agencies the president staffs using term appointments.

Ultimately, the limiting principle to a worst-case scenario of a future president grossly abusing the recess appointment authority lies with Congress’s impeachment removal power (which the Supreme Court has assured in Nixon is not reviewable as a nonjusticiable political question).

Noel Canning v. NLRB, No. 12-1115 (Sentelle, C.J., with Henderson & Griffith, JJ.) (argued Dec. 5, 2012)

Although Judicial Watch sought no information that would have identified the taxpayer who filed any given return, the court held inapplicable the disclosure bar’s exception for “data in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer.”  The employer’s name alone, even though not associated with its own return, is “data . . . identify[ing] . . . a particular taxpayer.”

This case goes a step beyond the Supreme Court’s 1987 decision in Church of Scientology of California v. IRS, which held that redacting identifying information from the returns of individual taxpayers does not lift the prohibition on disclosure of such forms.  Consistent with the Fourth Circuit, today’s decision holds that taxpayer names furnished to the IRS may not be disclosed, even where they appear on returns other than their own.

Judicial Watch, Inc. v. SSA, No. 11-5246 (Dec. 11, 2012) (Kavanaugh, J., joined by Garland, J., & Williams, S.J.)

Noel Canning v. NLRB, No. 12-1115 (Sentelle, C.J., with Henderson & Griffith, JJ.) (argued Dec. 5, 2012)

Zivotofsky v. Sec’y of State, No. 07-5347, 571 F.3d 1227 (July 10, 2009) (Griffith, J., joined by Williams, S.J., with concurrence by Edwards, J.) [Political Question, Passports] (affirming dismissal of challenge to State Department’s policy of listing only Jerusalem and not Israel on U.S. passports of citizens born there), vacated and remanded, 132 S. Ct. 1421 (2012)

In Cellco Partnership v. FCC, the Court unanimously upheld the Commission’s data roaming rule, which requires mobile-data providers to offer roaming agreements to their competitors on “commercially reasonable terms”:

Title III of the Communications Act of 1934 plainly empowers the Commission to promulgate the data roaming rule.  And although the rule bears some marks of common carriage, we defer to the Commission’s determination that the rule imposes no common carrier obligations on mobile-internet providers. In response to Verizon’s remaining  arguments, we conclude that the rule does not effect an unconstitutional taking and is neither arbitrary nor capricious.

In KLB Industries v. NLRB, over Judge Henderson’s dissent, the Court upheld the Board’s decision that a union was entitled to information from the employer about the competitive pressures the employer asserted to justify the substantial wage concessions it sought during collective bargaining.

On the one hand, . . . a competitive disadvantage claim is insufficient, by itself, to obligate a company to open its books. On the other hand, the Board’s discovery line of cases endorses a relevancy-based, pro-disclosure standard that allows a union to request specific information to verify a company’s stated position, including competitiveness claims. . . . [W]here, as here, an employer raises a competitiveness claim as its central justification for wage concessions, a union is entitled to information verifying that claim.

Cellco Partnership v. FCC, No. 11-1135 (Dec. 4, 2012) (Tatel, J., joined by Garland & Griffith, JJ.)

KLB Industries v. NLRB, No. 11-1280 (Dec. 4, 2012) (Tatel, J., joined by Rogers, J., with Henderson, J., dissenting)

From the abstract:

Through in-depth analysis of several original case studies (the history of the Glass-Steagall Act’s interpretation; the Food and Drug Administration’s attempt to regulate tobacco during the 1990s; the application of the Clean Air Act to greenhouse gasses) and an original large-n dataset (rulemaking under the Clean Air Act in the 1990s and 2000s), the dissertation traces the processes through which textual constraints become binding. A major theme that emerges is that judges take into account the policy-specific context in which novel interpretations occur, and especially the relative institutional capabilities of Congress and bureaucrats. Where Congress seems incapable of providing guidance, judges are more likely to accept strained interpretations of statutory text.

The dissertation’s most important contribution is to raise neglected empirical questions about the effects of law, answers to which would be of direct use to policymakers.

From the dissertation:

In Chevron Step One, judges determine the boundaries of the statute’s ambiguity and ensure that the action before them falls within that permissible range; in Chevron Step Two, judges ensure that the decision-making process used to reach the construction was reasonable (not arbitrary or capricious).

I argue that it is impossible to clearly demarcate “permissible interpretation” and “reasonable policy,” with the law controlling in the former case but not in the latter. Following Stephenson and Vermeule (2009), I assert that these distinctions collapse upon close examination, such that the primary question facing courts is always whether an agency’s actions can be seen as consistent with its statutory mandate. As a result, . . . law continues to guide actions under a statute even when it does not require any particular outcome.

*  *  *

[T]ext should be controlling if it is clear and practically unproblematic. If it is not, though, government actors attempting to resolve problems within a statutory scheme will eschew any hard and fast decision rules, instead favoring a context-sensitive assessment of institutional capabilities to guide their choices. In other words, bureaucrats and judges consider it a first-best option to act as the legislature’s faithful agents in effecting well-designed, coherent, and workable statutory requirements. At the same time, practical implementation problems, statutory lacunae, and ambiguous language confront them with many situations in which conceiving of themselves as mere rule-followers will either lead to results they consider unacceptable or leave them without meaningful guidance. At this point, they will muddle through as best they can with the information available to them, including about policy-specific institutional capacities. This dissertation mostly presents a justification for this account.

When Chief Judge Sentelle steps down, the court will retain its longstanding Republican-appointed majority by only a single judge.  And with four of the D.C. Circuit’s 11 seats seats vacant, President Obama will have an opportunity to significantly remake the court.

(H/T Glenn Sugameli)

See also:

• “The Hanging of a Wonderful Man”: Justice Thomas Honors Chief Judge Sentelle, D.C. Circuit Review (June 11, 2012);
• Can “Human Drama” Help To Fill the D.C. Circuit’s Three Empty Seats?, D.C. Circuit Review (Nov. 27, 2012);
• Is the D.C. Circuit Too Small to Go En Banc?, D.C. Circuit Review (May 29, 2012).

In a 2007 order, the Commission had granted the gas company market-based rate authority under § 4(f) of the Natural Gas Act, which permits such rates as an incentive where “necessary to encourage the construction of the storage capacity in the area needing storage services.” But in 2010, when the gas company asked to extend those favorable rates beyond the expiration date of its existing contract, the Commission balked. In a new order, FERC interpreted § 4(f) to prohibit market-based rates where the storage capacity had already been constructed. Because the gas company had already built the new facilities, no further incentive was justified. The gas company argued that this interpretation should apply only prospectively (if at all), because the company had relied to its detriment on the Commission’s 2007 order, which had strongly suggested that the gas company could (under certain circumstances) extend market-based rates beyond the expiration of the original contract.

The court gave two main reasons for rejecting the gas company’s anti-retroactivity argument:

First, the gas company failed to prove that it had relied on the Commission’s favorable statement in the 2007 order. The fact that the gas company began construction after that order was insufficient to prove reliance.

Second, the court held that any reliance would have been unreasonable. The court relied on two related factors to support this arguably less comfortable holding.

• The Commission’s favorable language in the 2007 order that it repudiated in 2010 “appears to be dictum.”
• The possibility of market-based rates was always contingent on the Commission’s exercise of discretion. FERC did not promise that market-based rates would be available but only said it would consider “the extent to which market-based rates should apply beyond the primary term” of the contract if it found the gas company had proposed adequate “protections against the exercise of market power.”

The court did not rely on its conclusion (in an earlier part of the opinion) that the Commission’s more recent interpretation of § 4(f) “is fully consistent with the obvious meaning of the statute.” That omission was well advised: Obvious though it may be that the statute is designed to encourage new construction, the statute is by no means unambiguous about the specific market-based rate mechanism by which the Commission must achieve that statutory objective. New construction of storage capacity would, of course, look even more tantalizing to gas companies if they believed (as Northern Natural Gas Co. apparently did) that it might possibly (even if not certainly) open the door to market-based rates in perpetuity.

An alternative rationale for the court’s “unreasonable reliance” holding — one the court did not rely on but which might have taken some of the sting out of the Commission’s apparent bait and switch — is suggested by Judge Williams’s observation that the gas company itself asked the Commission in 2007 not to decide whether market-based rates would be available after the expiration of the original contract. When the regulated entity is the cause of its own uncertainty, it is harder to fault the agency for an apparent change of course down the road.

N. Natural Gas Co. v. FERC, No. 11-1240 (Nov. 27, 2012) (Williams, S.J., joined by Garland & Kavanaugh, JJ.)

See also:

• Supreme Court Could Decide Whether Retroactive Rulemaking Requires Express Statutory Authorization, D.C. Circuit Review (Nov. 3, 2011)
• D.C. Circuit Rejects HHS’s Retroactive Application of New Medicare Reimbursement Policy, D.C. Circuit Review (Sept. 15, 2011)

The court held that a union negotiator’s vague promise to continue discussing the non-negotiable issue with his principal is, without a “specific proposal,” just a “bare assertion of flexibility” that is “entirely inadequate to break the impasse.” The court also held that “the Board cannot rely on a party’s post-impasse conduct to find no impasse.”

The court rejected the Board’s “rank speculation” that further bargaining might have yielded concessions despite both parties’ acknowledgement that they were at an impasse on the key issue:  ” ‘You never know’ is no substitute for substantial evidence.”

Citing Chenery, the court declined to reach the Board’s post hoc rationalization for its decision — the argument that “impasse cannot be found if the parties have not negotiated over economic issues.”  But the court expressed “serious[] doubt” about its merit.

Chief Judge Sentelle also noted in dicta that the Board’s remedy — imposing a bargaining order on the employer — was “an extraordinary remedy that may not be imposed in run-of-the-mill cases.”

From the opinion:

Impasse on a single critical issue can create an impasse on the entire agreement. A party asserting impasse based on a single issue must show that: first, a good-faith bargaining impasse actually existed; second, the single issue involved was critical; and third, the impasse on this critical issue led to a breakdown in the overall negotiations.

*  *  *

In this case, the evidence overwhelmingly points to the existence of an impasse on March 31. . . . At no point during the ten month negotiation did either party propose a compromise on union security or arbitration that was acceptable to the other party.

*  *  *

NLRB’s position is undermined by the inconvenient fact that the Union here not only did not say that the parties “weren’t at impasse” on March 31, its representative said — out-loud and in-person — that they were “at impasse.” . . . Thus, the Board’s finding . . . that no good faith impasse existed, is not supported by substantial evidence in the record, for the evidence “practically shouted impasse” on March 31.

Erie Brush & Manufacturing Corp. v. NLRB, No. 11-1337 (Nov. 27, 2012) (Sentelle, C.J., joined by Henderson & Griffith, JJ.)

The D.C. Circuit may offer the best opportunity to test Fontana’s theory.  The court has three empty seats, though only two may be politically viable. The Senate failed to confirm either of President Obama’s first term nominees, making him “the first president in at least half a century to finish a full term without making an appointment” to the court. Caitlin Halligan, who was perceived as overly partisan, failed to get enough votes to break the filibuster, and Srikanth “Sri” Srinivasan was nominated too late to have a realistic shot at confirmation during the President’s first term.

Srinivasan has both of the ingredients Fontana calls for in a judicial nominee. First, he’s had plenty of conservative bosses: He clerked for Judge J. Harvie Wilkinson and Justice Sandra Day O’Connor and won accolades in the Solicitor General’s office during the George W. Bush administration. Srinivasan’s biography isn’t short on human interest either: he immigrated from India with his parents and played high school basketball in Kansas before going on to Stanford for college and law school.

If he were to be confirmed, Srinivasan would not be the first D.C. Circuit judge to have survived a stalled nomination.

Although it may be no substitute for individual human drama, the D.C. Circuit also has the dubious distinction of being so short-handed that, with rare exceptions, it can almost never go en banc. The effects of this disability are more damaging on the D.C. Circuit than they would be on any other court of appeals. The D.C. Circuit hears a disproportionate share of the nation’s administrative law cases, and to the extent other circuits hear those cases they are cognizant of (and often deferential to) the D.C. Circuit’s expertise. That means there are relatively few circuit splits on administrative law questions for the Supreme Court to resolve, so the D.C. Circuit often ends up giving the final word in this critical area. It’s especially important then that the court speak with one voice in its administrative law docket. That’s something it can’t do effectively if en banc rehearing is not a viable option.

Then-Judge Kenneth Starr made a similar point in an opinion concurring in the denial of rehearing en banc in 1989:

With the Supreme Court’s plenary docket brim to overflowing, the appellate en banc procedure duly authorized by Congress provides a reasonable and sensible way of assuring that conflicts are not lightly or casually created. This alternative seems all the more applicable to our court, which ranks in the bottom tier of the respective courts of appeals in the percentage of cases that it sees fit to consider en banc. Indeed, our comparative reluctance to repair to the en banc procedure is doubly odd inasmuch as Congress has seen fit to confer exclusive jurisdiction on our court in a number of critical arenas of federal law. Thus, quite apart from conflict-generating decisions (which are of obvious importance to the uniformity of federal decisional law), of equally high concern to our court should be panel decisions raising important issues in the body of administrative law, the area in which our daily labors so completely immerse us. In view of our unique jurisdictional mandate and location at the seat of government, we are well advised to be vigilant in keeping our own house fully in order. In short, one would more naturally think that we would rank toward the top of the circuits, rather than leisurely roosting down near the bottom, in our willingness to take a more considered, second look at the important cases that so regularly come before us.

From Fontana’s blog post:

When the Senate held hearings about [Ledbetter v. Goodyear Tire], Lilly Ledbetter, the gender discrimination victim who brought the case that led to the Court’s eventual decision, testified about the human impact of the decision. . . . Dry law was made into human drama because of a compelling, human protagonist.

By contrast, judicial nomination hearings tend to have all of the human drama of paint drying. . . . [B]ut at bottom the political dynamics [of judicial confirmation hearings] are not all that different from other things that the Senate does. And a Senate faced with more bipartisan nominees, and nominees framed in human terms, could help get the Senate moving on judicial nominees in Obama’s second term.

(HT @howappealing)

[Update: This post has been updated to reflect that Srinivasan's nomination is still pending.]