Thursday, March 25, 2010

Looking More Likely Becker Will Be Recessed Appointed to the NLRB

Nlrblogo 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. 

Here is the Blog of the Legal Times on the current situation:

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.


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Tracked on Mar 26, 2010 9:00:07 PM


To some degree he's damaged goods.He would have less credibility, and ironically,be less equipped to reform the NLRB in the way it needs to be reformed. It would go against what the Democratic party is supposed to stand for. Cf. also statements made in regard to Bush's recess appointment of UN Ambassador John Bolton :
"John Bolton now goes to the United Nations without the support or confidence of the Senate, instead representing only the president of the United States." Unfortunately this go-it-alone strategy is all too familiar with this administration." - Tom Harkin

“To some degree, he’s damaged goods,” said Sen. Barack Obama, D-Ill., a member of the Senate Foreign Relations Committee. “I think that means we’ll have less credibility and, ironically, be less equipped to reform the United Nations in the way that it needs to be reformed.” -Sen. Obama

“The President’s decision to circumvent the Senate and use a recess appointment naming John Bolton as ambassador to the United Nations is a mistake... to use a recess appointment for such a controversial nominee...subverts the confirmation process in ways that will further harm the United States."- NancyPelosi

"devious maneuver that evades the constitutional requirement of Senate consent and only further darkens the cloud over Mr. Bolton's credibility at the U.N." - Sen. Edward M. Kennedy
"It’s an unnecessary result, and the latest abuse of power by the Bush White House."
Harry Reid

The fact that Becker is supported by the AFL-CIO which represents a mere 7.4% of the private sector workforce (most of the time in direct opposition to what 92.6% or workers and most citizens consider to be their best interests) is precious little support indeed.

Posted by: joe marino | Mar 26, 2010 6:10:26 AM

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