Senate Republicans Represent The Senate Now?

NLRB V. NOEL CANNING, ET AL. The motion of Senate Republican Leader Mitch McConnell, et al. for leave to participate in oral argument as amici curiae and for divided argument is granted, and the time is to be divided as follows: 45 minutes for petitioner, 30 minutes for respondent Noel Canning, and 15 minutes for amici curiae Senate Republican Leader Mitch McConnell, et al. The motion of Professor Victor Williams for leave to participate in oral argument as amicus curiae and for divided argument is denied.

The agreement that led to the confirmation of NLRB board members did not end this case because the decisions by the recess appointments (the case might determine if quotation marks are required here) still have to be considered. The Senate vote on applying the filibuster to appointments clearly has significant importance to the whole question too though how it will affect the legal dispute is less so. 

This will be the first big case to be heard in the year. The most notable thing in an otherwise boring (going by Scotublog) day of orders involves this case.  It is not surprising Prof. Williams did not get oral argument time though his brief arguing that this should be rejected on political question grounds while supporting the government is worth a look and pointing to the obstruction that has led to the usage of recess appointments. It argues that the latter should be justiciable too if the former is. Unlike in the DOMA cases, do not think the federal government would mind such a ruling, so there is not a special need for additional voice.

The Senate Democrats do not oppose the President's recess appointments here, so there is more of a conflict there regarding the McConnell involvement. In DOMA, BLAG provided a voice in support of the legislature (well half of it -- this to me was a problem on standing grounds; fine with its use to provide the other side) that passed the legislation that the President felt unable to defend. Here, the Senate has chosen not to defend its interests. Why should the minority step in? Would a single senator have the power to step in to defend a personal interest?  Perhaps, time should be granted to the majority side here to provide the opposite viewpoint, explaining why Senate interests are not denied here. The executive probably doesn't quite do the trick there.

I'm generally open for liberal involvement of briefs and voices at oral arguments, but it should be evenhanded. Here, the Republican minority alone is being granted time to provide the "Senate" viewpoint. Its brief underlines that is the primary concern for their involvement.  I can see how this is not on all fours, if here clearly on their side, with the Canning defendants. Still, if there is going to be voice for the Senate, shouldn't it come from the MAJORITY side?!  Why should the minority get separate time in oral argument while the majority's interests apparently are to be left to the government's time?

It does send a symbolic message that as some justices are all concerned with Senate privileges here, only a Republican minority of the body feels oppressed here. Checks and balances are not being denied here. It's true that if there is a constitutional limit, a group cannot delegate it away.  All the same, as Williams et. al. show, the Senate has various ways to protect its interests here without the courts trying to fine tune the word "recess" (or "the").  If the U.S. Senate as a whole actually opposed this move, fine.  I oppose giving the minority a special voice here.

ETA: Miguel Estrada is the voice of the Republicans here (at least going by the brief), helping the side currently supporting what helped block his nomination to the court of appeals. He is their often cited filibuster martyr, a gift that keeps on giving, in more ways than one. Look for some interaction with his pal.