05/26/2010 05:12 am ET | Updated May 25, 2011

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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