NLRB Recess Appointments Supported By John Roberts, Opposed By John McCain

Since 2008, the National Labor Relations Board has struggled on with only two out of the five members it is supposed to have. And so, it hasn't been able to carry out its principal mission, which is administering the National Labor Relations Act -- "the primary law governing relations between unions and employers in the private sector" -- because it's rulings are constantly ending in one-to-one ties.

It's terrible, useless gridlock, but nothing has advanced because President Obama wants to appoint Craig Becker to the board. The trouble is, Becker -- a former attorney for the AFL-CIO and Service Employees International Union -- is not openly hostile to the interests of workers, so the GOP has been blocking the nomination.

Pat Garofalo reports that this matter came up during recent arguments before the SCOTUS in New Process Steel v. National Labor Relations Board, a case which basically hinges on whether the NLRB's two-member rulings are even valid. As Garofalo notes, there is a lot at stake: "if the decision goes against the NLRB, more than 600 cases that the shorthanded board has decided could be thrown out."

So, now, even Chief Justice John Roberts is wondering why Obama doesn't just make some recess appointments, already!

NEAL KATYAL, DEPUTY SOLICITOR GENERAL: They were named in July of last year. They were voted out of committee in October. One of them had a hold and had to be renominated. That renomination took place. There was a failed quorum -- a failed cloture vote in February. And so all three nominations are pending. And I think that underscores the general contentious nature of the appointment process with respect to this set of issues.

CHIEF JUSTICE ROBERTS: And the recess appointment power doesn't work why?

Well, they do work, and the White House seems poised to pull the trigger on installing Becker in that fashion, but first, they will have to endure a fusillade of petulance from John McCain, who has an issue:

We are writing to urge you not to overturn the bipartisan vote against the nomination of Craig Becker to be a Member of the National Labor Relations Board (NLRB) through a recess appointment. To do so would bypass the advice and consent traditions of the Senate...Taking this action would install a rejected nominee for an appointed term to the NLRB, setting an unfortunate precedent for all future nominations and future administrations.

As Garofalo is quick to note, Becker is not a "rejected nominee."

His nomination was filibustered, like so many others, as a motion to file cloture on his nomination was defeated by a 33-52 vote (with 15 senators missing the vote), eight short of the 60 needed to proceed to debate and a final vote.

Becker would clear the Senate on a straight up-or-down vote today, is the Senate were allowed to have one.

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Comments

[coop48]

11:47 AM on 04/04/2010

Give it up McCain, the war is over

[Auduboner]

01:14 PM on 03/27/2010

John's short-term memory has failed him - a sure sign of creeping senility.

He obviously doesn't remember the DOZENS of recess appointments the Shrub administration used, including the execrable John Bolton to the U.N.

Check your own press clippings, John - you were IN FAVOR of those appointments! Oh wait - Redumbicans don't read, as a matter of principle...

[ZeraLee]

01:39 AM on 03/27/2010

I am opposed to Recess Appointments in this day and age. It was an emergency power for a time when it could take weeks to convene a recessed Senate for "advice and consent". I consider it's use to evade "advice and consent" to be a betrayal of the Constitution.

But that presumes that the Senate is doing it's job properly. That is not currently the case. After the last election, the Republicans adopted a policy of pervasive, crippling obstruction that has nothing to do with approval or disapproval of any particular nominee. In doing so, they have created the very protracted vacancy problem that the Recess Appointment was intended to resolve.

The NLRB arbitrates between unions and employers. Maintaining a purely pro-business board defeats the purpose of the board - which is what Republicans want, but not what America needs.

Break the log jam, Mr. President.

My big concern is how far the Republicans will go if a vacancy opens in the Supreme Court. That is one place where a Recess Appointment will just not do, yet the Republicans have already corrupted it with political partisanship.

[slippery pete]

10:09 PM on 03/26/2010

John McCain: liar

[triunegroup]

09:07 PM on 03/26/2010

Please sign petition to boycott Sarah Palin's show on the discovery channel

http://www.thepetitionsite.com/21/boycott-the-discovery-channel-networks

[lynettema]

07:53 PM on 03/26/2010

If we can't get around this d@#% cloture vote, we need to elect about 10 more Democrats to the
Senate.

[johnel1964]

11:49 PM on 03/27/2010

Hear hear! But two would do the job, then we could put Joe "I-campaign-for-Republicans" Lieberman, and turncoat X 2 Arlen Specter into the political Limbo from which they could do no harm; but the more the merrier. A total of 67 would be wonderful.

[Sue-in-Jersey]

07:44 PM on 03/26/2010

McCain has fallen so low, he's calling on Sarah "Drag on The Ticket" Palin to prop him up.
So explain to us: Exactly WHY do we care what McCain says?

P.S. I invite the rest of you to ignore all Sarah Palin articles with me. I'm kinda hoping that woman departs politics soon, so she can devote her energies to new anti-nature Discovery Channel.

[TommyMcCarthy]

06:45 PM on 03/26/2010

Well.... it's not like we are all UNACCUSTOMED to weathering a ...
"...fusillade of petulance from John McCain"

GOD! I love that line..........Nice job Jason.........I mean how often does one get to actually USE "fusillade"? Perhaps tomorrows word could be "cannonade"

At any rate, "petulance" is about all Sen. McCain has had to offer for well over a year.

Meanwhile, back here on terra firma we've got this great big sprawling country to run....and ,
I'd venture to say....(Hear the sound of me tip-toeing out on a limb?)..........the American people may acquire a TASTE for effective government..........
Whether they will admit it or not......even the "Tea Partiers" don't REALLY want to see our country fail.

Any child psycologist will tell you that many spoiled children, positively DRUNK on the attention they recieve for "acting out" secretly long for an adult to step in and set some limits.
Lord knows THEY don't have the slightest idea how to drive the car...or administer the government.

Adults who WON'T step up and set these limits should remember that OTHER spoiled children.....jealous of the attention the miscreant is recieving are watching. Sound familiar?

McCain has abdicated his position as an adult when it comes to the latter.

Mr. President....USE the authority that we, the people have vested in you.
IGNORE spoiled children of all ages...including Sen. McCain
Make the appointments....make 'em ALL
TM

[Trittydi]

06:20 PM on 03/26/2010

Wow. Roberts calling Obama out for being a wimp on recess appointments.

This is good.
*

[HST]

05:15 PM on 03/26/2010

McCain is bewildered as to why the president might side step his obstruction.

I'm sure he felt this way about all of Bush's recess appointments too.

[Clevelandinwi]

06:23 PM on 03/26/2010

jonnymccain it just plain bewildered! He's trying to use his senate seat to establish more right-wing obstructionist credentials in his battle with jdhaywort (the BIRTHER) for the Arizona nomination.

[jeanwny]

04:32 PM on 03/26/2010

Doesn't he have a campaign to lose, omg that would mean Hayseed, talk about ugly choices!

[Clevelandinwi]

06:25 PM on 03/26/2010

It's painful! There is a hope. These two guys might be too extreme for the voters come November. Could we get a word for the Democrat in the race? Who is it, anyway? Is the corporate controlled media keeping his name on the low profile?

[nikky]

04:24 PM on 03/26/2010

who cares what john mcfane says anyway he said he is going to do nothing as long as obama is in office so why is he running to get the public option medicare and private ins. for fed. employees and to get his salary and his soc. sec while his wife makes 200 million $$$$$$$$$

not for the needy but the greedy

[borninjulyj]

04:15 PM on 03/26/2010

The term "bipartisan voting" from a Republican has become one of the most trite and meaningless statements.

[AnnFromTN]

05:55 PM on 03/26/2010

bipartisan Republican is an oxymoron.

[IncredulousGeezer]

04:11 PM on 03/26/2010

Little John's got to outcrazy JD in their primary contest. Don't expect much rational from him at least until that is settled. Maybe not after that, either.
Time to get out, John and let someone serious represent AZ in the Senate.

[MarkfromDecatur]

03:42 PM on 03/26/2010

Why doesn't President Obama fill all the appointments he needs during the Easter Recess and be done with it?

[Billar]

03:57 PM on 03/26/2010

Obama should also appoint his judical and management picks also.