How Obama’s NLRB nominees became central to Senate filibuster deal

Senate lawmakers on Tuesday avoided a knock-down, drag-out fight over filibuster rules as Republicans agreed to confirm a slate of President Obama’s executive-branch nominees in exchange for replacing some of the initial picks.

The swap centered around two former nominees for the National Labor Relations Board, Sharon Block and Richard Griffin, both of whom Obama had already appointed to the panel while the Senate was on break in January 2012 — essentially bypassing the confirmation process.

(Jose Luis Magana/Reuters) - Senate Majority Leader Harry Reid (D-Nev.).
Senate Majority Leader Harry Reid (left). (Jose Luis Magana/Reuters)

Lawmakers agreed on Tuesday to replace those selections with Nancy Shiffer, associate general counsel at the AFL-CIO, and Kent Hirozawa, who is chief counsel to NLRB chairman Mark Gaston Pearce.

In April, the president nominated Block and Griffin — who were already sitting on the board because of their earlier appointments — for positions on the panel, alongside fresh nominees Harry Johnson and Phil Miscimarra.

A party-line committee vote on whether to move forward with the confirmation process indicated that Senate Republicans would have nothing to do with the first two selections. Let’s take a closer look at that controversy to understand why this showdown occurred and how lawmakers eventually ended it.

The board has been in limbo since January, when a three-judge panel of the D.C. Circuit Court of Appeals ruled unanimously that the president’s 2012 NLRB placements were unconstitutional.

The administration has appealed that decision to the Supreme Court, which decided in June to hear the case.

The Constitution allows so-called “recess appointments” but does not specify how long the Senate must be on break before the president can use that option.

(Carolyn Kaster/AP)
(Carolyn Kaster/AP)

Obama placed Block and Griffin on the board when the Senate was away but convening with one GOP lawmaker every three days to prevent any recess appointments, copying a tactic Democrats had used during the George W. Bush administration.

Solicitor General Donald B. Verrilli Jr. has argued that the appeals court’s ruling would “drastically curtail the scope of the president’s authority.” Republicans contend that Obama’s actions were unprecedented, since no president has made a recess appointment during a break of less than 10 days.

The Supreme Court’s eventual decision will determine the legitimacy of all NLRB rulings since the president made his recess appointments, meaning more than a thousand recent determinations hang in the balance.

Sen. Lamar Alexander (R-Tenn.), the top Republican on the committee that oversees the NLRB, opposed the Block and Griffin nominations during a panel vote in May, even though the president was trying to place them on the board through the confirmation process this time.

(Drew Angerer/Getty Images) - Sen. Lamar Alexander on the left with Senate Minority Leader Mitch McConnell on the right.
Sen. Lamar Alexander (left) with Senate Minority Leader Mitch McConnell.  (Drew Angerer/Getty Images)

“This is a matter of principle,” Alexander said at the time, adding that Obama had shown “a troubling disrespect for the Constitution” by appointing those members in 2012. Other Republicans on the panel echoed the senator’s sentiments.

Democrats disagreed. Sen. Tom Harkin (D-Iowa) said before the vote in May: “This is an exceptionally well-qualified package of nominees, and they all deserve to be swiftly confirmed.”

Tuesday’s compromise essentially cleanses the NLRB of the controversial appointments while allowing the board to once again function without a constitutional question mark hanging over its head. That gives Republicans and Democrats most of what they want.

In a statement on Tuesday, Obama maintained that Republicans had threatened to block his nominees “for purely political reasons.” But he commended lawmakers for the compromise they agreed to on Tuesday.

“I want to thank the Senators from both parties – including Leader Reid, Leader McConnell and Senator McCain – who have worked together to find a path forward and give these nominees the votes they deserve,” Obama said in a statement.

Alexander also applauded Tuesday’s deal.

“This is the suggestion I offered in the HELP committee in May, that the president send us two new members to replace those that he had unconstitutionally appointed when he used his recess authority while the Senate was not in recess,” Alexander said. “This agreement allows the Senate to make clear that this president, or any president, cannot thumb his nose at the Senate’s constitutional role in our system of checks and balances.”

To connect with Josh Hicks, follow his Twitter feed, friend his Facebook page or e-mail josh.hicks@washpost.comFor more federal news, visit The Federal Eye, The Fed Page and Post Politics. E-mail federalworker@washpost.com with news tips and other suggestions.

Josh Hicks covers the federal government and anchors the Federal Eye blog. He reported for newspapers in the Detroit and Seattle suburbs before joining the Post as a contributor to Glenn Kessler’s Fact Checker blog in 2011.
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Josh Hicks · July 16, 2013