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Institutional Standoffs Not All That Rare

Chris Maddaloni/CQ Roll Call
Sens. Patrick Leahy (left) and Dick Durbin are pushing the Supreme Court to televise its proceedings, which is one of the many current conflicts among the branches of government.

“We believe permitting the nation to watch the proceedings would bolster public confidence in our judicial system and in the decisions of the Court,” they wrote.

Grassley is a co-sponsor of a bill by Durbin to require the Supreme Court to permit television coverage of all open sessions unless it decides by a majority vote that allowing such coverage in a particular case would violate the due process rights of any of the parties involved. The Judiciary Committee passed the bill in February, which was introduced in an effort to prod the court to televise the health care law arguments, in February, but it’s still unclear whether the full Senate will consider it.

Members of Congress have also pushed back against pressure coming from the judicial branch.

Earlier this month, U.S. District Judge Reggie Walton ruled that Oversight and Government Reform Chairman Darrell Issa (R-Calif.), Holder’s chief nemesis on the contempt imbroglio, did not have to testify in the trial of former major league baseball pitcher Roger Clemens. Clemens’ lawyers wanted Issa to testify in the case over whether Clemens lied to Congress during its investigation of steroid use. Lawyers for the House invoked the Speech or Debate Clause, a rule that seeks to protect lawmakers from being unduly influenced by other branches of government.

Another standoff pitted Senate Republicans against the Obama White House over recess appointments. In January, Obama appointed Richard Cordray to head the Consumer Financial Protection Bureau and filled three slots on the National Labor Relations Board.

Republicans questioned the legitimacy of the recess appointments and charged the White House with overreach. The GOP contends that Congress was not in recess when the appointments were made because it held short pro-forma sessions every three days during the holiday break when Obama made his move. The White House argued that the pro-forma sessions were a gimmick and didn’t count as a bona fide session.

Last week, a Texas bank and two free-market advocacy groups filed suit against the Cordray appointment and are seeking to have parts of the Dodd-Frank financial system reform law, which created the CFPB, deemed unconstitutional. The plaintiffs are represented by C. Boyden Gray, former White House counsel to George H. W. Bush.

Another showdown set the George W. Bush White House against Senate Democrats over judicial nominations. With Democrats filibustering Bush’s appellate court nominees, frustrated Republicans, led by then-Majority Leader Bill Frist
(R-Tenn.), threatened to eliminate the filibuster to prevent judicial confirmations.

Ultimately, 14 Senators — seven Democrats and seven Republicans — developed a gentlemen’s agreement in 2005 that broke a judicial logjam.

Sarah Binder, a historian of Congress at George Washington University and senior fellow at the Brookings Institution, believes most of these affairs are more partisan dust-up than constitutional crisis.

“I think true crises are rare,” Binder said.

“I more see the [recent issues] as institutional flare-ups,” she said. “As the parties have polarized, there is greater effort to stake out positions that are seemingly unacceptable to the other side.”

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