There were many important issues raised in today’s D.C. Circuit argument in Noel Canning v. NLRB, the recess appointments case, but lets start with some unimportant ones.
How do you pronounce Harry Daugherty’s name? The Justice Department lawyer representing NLRB, Beth Brinkmann, pronounced it “Dockerty,” and the panel went along with that. I have always pronounced it “Doh-her-tee” or “Daw-her-tee” (according to Wikipedia, its “daw-HER-tee”). I think if DOJ is going to rely so much on Daugherty’s opinion, it should at least know how to pronounce his name. Exit question- how do they pronounce it on “Boardwalk Empire”?
How come this can’t be the Goya Rice case? According to Noel Francisco, who appeared on behalf of Noel Canning and the Chamber of Commerce, the Chamber has standing to intervene in the case because it has at least two members, Noel Canning and Goya Rice, currently participating in proceedings before the NLRB. It would be a lot easier to explain the importance of the Recess Appointments Clause to my children if Goya Rice were the named party—they have never heard of Noel Canning, but we go through a box of Goya Rice every week.
Why isn’t Senate Legal Counsel here? Judge Griffith, himself a former Senate Legal Counsel, asked this question during the argument. Griffith was making the rhetorical point that the Senate had not taken a position in the case, but the literal answer to his question was that Senate Legal Counsel was in an overflow courtroom downstairs. By the time he and the Deputy Senate Legal Counsel arrived, there was no more room in the main courtroom (though Senator McConnell, who arrived afterward, apparently had a reserved seat). I sat in the overflow courtroom as well, where a watchful clerk made sure no one was live blogging the proceedings.
What’s so great about unanimous consent anyway? Francisco argued that since nominees are usually confirmed by unanimous consent, the fact that the Senate could only act by unanimous consent during its pro forma sessions did not prevent the President from getting nominees confirmed. Judges Griffith and Sentelle were at immediate pains to point out that not all nominees are approved by unanimous consent. Sentelle, who was confirmed by an 87-0 vote, reiterated the point, possibly throwing a meaningful look at Griffith (there was only audio in the overflow courtroom). “I said usually,” stressed Francisco. “Lets move on,” said Griffith, who was confirmed 73-24, good-naturedly. Judge Henderson, who was confirmed by unanimous consent, tactfully remained silent.