Obama Judges Threaten Right to Work Laws

Big Labor Senators Aim to Cement Courts’ Pro-Forced Unionism Bias

Even as the number of Right to Work states and the share of all U.S. employees protected from compulsory unionism grew rapidly from early 2012 through early last year, the federal judiciary, with the important exception of the U.S. Supreme Court, grew more and more protective of Big Labor monopolists.

Today a dismayingly large number of federal appellate judges are hostile to the individual employee’s freedom to join or financially support a labor organization, or refuse to do either. And it’s no mystery why this is so.

Judiciary Chairman Grassley is doing what he can to lessen the federal bench’s anti-Right to Work bias. Credit:  Justin Wan/Sioux City (Iowa) Journal

Over the course of former Democrat President Barack Obama’s eight years in office, including two during which the U.S. Senate was controlled by the opposition Republican Party, the Senate confirmed 46 of his appellate court appointees.

And taken as a group Obama appointees have established an unmistakable and alarming pattern of “reinterpreting” federal labor law to undermine court precedents and statutes that protect, at least to a limited degree, employees’ freedom not to affiliate with a union.

Judges Sidestep High Court Precedent, Call Forced Speech Subsidies Constitutional

An egregious case in point is the October 2017 ruling by two judges on the U.S. Court of Appeals for the Seventh Circuit in Riffey v. Rauner.

In this decision, Judges Diane Wood (who was appointed chief judge of the Seventh Circuit by Mr. Obama in 2013) and David Frank Hamilton (appointed by Mr. Obama in 2009) found that Big Labor Illinois politicians and union officials had not violated the constitutional rights of in-home care providers.

Judges Wood and Hamilton claimed that the government does not inflict a First Amendment injury on such individuals when it forces them to subsidize Organized Labor speech without their prior consent.

They reached this conclusion even though the U.S. Supreme Court had already ruled in its 2014 Harris v. Quinn decision, argued and won by National Right to Work Legal Defense Foundation attorneys, that forcing homecare providers to pay for union-boss advocacy is unconstitutional.

National Right to Work Committee Vice President Matthew Leen commented:

“The recent unfortunate ruling in Riffey v. Rauner illustrates the kind of uphill battle Americans whose rights are trampled by Big Labor will have to fight to obtain justice until the composition of the federal appellate judiciary changes significantly.

“Foundation attorneys have already filed an appeal with the Supreme Court on behalf of care providers. But the High Court only agrees to hear a small fraction of the appeal petitions it receives. That’s why activist appellate decisions like Riffey often stand despite their defective reasoning.”

Trump Nominees Could Restore Balance to Appellate Courts, If Enough Are Confirmed

Mr. Leen added that Right to Work supporters do have reason to hope that the pro-union monopoly bias of appellate courts like the Seventh Circuit could diminish over the next few years.

He explained: “We’re still early in the Trump years, and no one knows what will happen next, but so far the GOP President’s judicial nominees have overwhelmingly been, based on what we know of them, the kind of jurist who will give a fair hearing to workers who have a disagreement with Big Labor bosses.

“Unfortunately, despite the fact Donald Trump’s fellow Republicans wield formal control over the Senate, it has been taking an outrageously long amount of time for judicial nominees to come up for votes since the beginning of this Administration.”

As of March 25, noted Mr. Leen, 10 Trump court of appeals nominees were awaiting confirmation votes in the Senate. This is in part because Big Labor Democrat politicians have taken the unprecedented step of requiring time-wasting cloture votes and up to 30 hours of floor debate on 28 of the 29 judicial nominees confirmed so far in this Congress.

But Republican Senate leader Mitch McConnell (Ky.) also deserves some of the blame, Mr. Leen added, for structuring the confirmation process in such a way that empowers anti-Right to Work politicans to stall Trump nominees.

“Majority Leader McConnell could learn a thing or two,” he said, “from Judiciary Chairman and National Right to Work Act cosponsor Charles Grassley [R-Iowa],” said Mr. Leen. “In mid-February, Mr. Grassley overruled the objections of union-label senators and pushed Seventh Circuit nominee Michael Brennan through his committee. And that’s just one example of the good work the chairman is doing on judicial nominations.”

(source: May 2018 National Right to Work Newsletter)