Paul Clement must still be stinging from that Obamacare loss. The celebrated conservative lawyer and former Solicitor General seemed unbeatable after he managed to secure constitutional approval for the government to hold prisoners indefinitely while blasting Barry Manilow if the Vice President’s office says so. People actually described him as the Michael Jordan of the law.
And then the Court upheld Obamacare. Even Jordan needed Pippen.
To reestablish his conservative street cred, Clement filed a petition with Justice Ginsburg to jump the line and put his case complaining about NLRB recess appointments, currently residing in a Connecticut district court, in front of the Supreme Court ahead of the high profile Noel Canning v. NLRB decision from the D.C. Circuit (discussed by Elie here).
Justice Ginsburg told Clement to pound sand.
Technically, Clement asked Ginsburg to lift an injunction imposed by the district court ordering his client, HealthBridge Management, to reinstate some 700 striking workers from their chain of nursing homes, and in the alternative take up his case.
It’s unclear why, beyond personal hubris, Clement would want this case before the Court instead of Noel Canning. Note that Clement’s co-counsel in this matter is SCOTUS sister Rosemary Alito, co-chair of the labor and employment practice at K&L Gates. So the conservative wing of the Court would be down a man if they picked up this case, assuming Alito recused himself from hearing a case litigated by his sister (which is not necessarily a sure thing).
Without Alito, Clement would be setting himself up for another loss. Think less Chicago Bulls Jordan and more Washington Wizards Jordan.
In the wake of Ginsburg’s denial, HealthBridge Management will ask Justice Antonin Scalia to review the petition, in the legal equivalent of, “But Daddddddddd!!!!”
These recess appointment challenges should terrify everybody on both sides of the political aisle. Just yesterday, the Congressional Research Service released a study outlining the grave consequences for the country if Noel Canning was decided in 1981.
The elimination of intrasession appointments would have been particularly frustrating for George W. Bush, according to the report. He made an estimated 141 such appointments, compared with Obama’s 26. From massive agencies like the Agriculture and Education departments to more obscure bodies like the Federal Maritime Commission and the Legal Services Corp., scores of Bush appointments apparently would have been invalid under Noel.
Reagan, too, would have been severely hemmed in by the ruling. Reagan made an estimated 232 recess appointments, followed by George W. Bush with 171, Clinton with 139, George H.W. Bush with 78 and Obama with 32.
Indeed, Republicans use the recess appointment much more frequently than Democrats, making the new “War on Appointments” all the more puzzling. Sure this ruling could eviscerate the NLRB, which is good news for
sweatshops hard-working business owners, but is it worth hamstringing any future Republican administration?
But maybe Clement doesn’t care about that. After all, his Senate confirmation hearing was a breeze — 26 minutes long and only three Senators bothered to show up. Ah the good old days, when administrations could actually confirm people.
Supreme Court justice denies stay in employment case [Thomson Reuters News & Insight]
Supreme Court Asked To Weigh Constitutionality of Obama Recess Appointments [The BLT: The Blog of Legal Times]
Obama Recess Appointment Ruling Would Have Altered Course Of History [Huffington Post]