Thursday, March 25, 2010
Well, I for one, hope so. Not only because he is eminently qualified for the position, but because his confirmation process indicated that there was nothing fair or impartial about the way John McCain and his fellow Republicans handled the process. As many have pointed out, a dysfunctional NLRB serves the interests of employers just fine.
Indeed, perhaps Obama should make three recess appointments, because it is unclear whether the other two nominees (Senate Republican staffer Brian Hayes and Buffalo Democratic labor lawyer Mark Pearce) will be able to get an up-or-down vote in the Senate through the normal procedure.
As members of Congress prepare to head out of town for a two-week break, pro- and anti-union forces are readying for a possible recess appointment of labor lawyer Craig Becker to the National Labor Relations Board.
Republican senators sent a letter to President Barack Obama today asking him not to use his authority to appoint Becker.
“To do so would bypass the advice and consent traditions of the Senate,” reads the letter, which was organized by Sens. Orrin Hatch (R-Utah) and John McCain (R-Ariz.). It goes on, “We oppose Mr. Becker’s recess appointment because of his extensive, highly controversial writings, and his entire legal and scholarly career, all of which indicate that he could not be viewed as impartial, unbiased, or objective in deciding cases before this quasi-judicial agency.” . . . .
Pot calling the kettle black, anyone?
On the other side are union-backed groups that have supported Becker since Obama nominated him 11 months ago. Kimberly Brown, executive director of American Rights at Work, said in a statement this week that Obama should “use the same power of recess appointment exercised by his five predecessors — including George W. Bush — and appoint his nominees to the National Labor Relations Board over the Easter congressional recess. America’s working families, struggling to make ends meet in the worst economy since the Great Depression, deserve no less.”
In legal terms, Hatch and McCain come to this point in this political drama with extremely unclean hands, having decided even after the unprecedented step of having a confirmation hearing that Becker could not be impartial, his protestations to the contrary notwithstanding. The fact that someone writes innovative scholarly opinions does not go to how that person will be in that government office. Those are the exact people we want on both sides thinking long and hard about what ails American labor law. What is more important is whether the person will support the NLRB as an institution and decide cases in line with nearly 75 years of Board law and policies.
Look, if you abuse the advice and consent process in the Senate, you can't be expected to be taken seriously when you say to the President: "hey, you shouldn't use your recess appointment power." Even Chief Justice Roberts asked during oral argument in New Process Steel yesterday why didn't the President just use his recess power given the current crisis at the NLRB? Why indeed.
President Obama should and he should do so by appointing all three nominees so that the full Board can get on with its important work after more than two years and decide the critical issues that arise in the workplace on a daily basis. Senate Republicans will then be on notice that there is a price to be paid for their shenanigans and obstruction and losing an election decisively means you don't always get to have your way with these things.