For those concerned about excessive partisanship and polarization, Tuesday’s Senate deal that clears the way for votes on presidential nominees is certainly a rare bit of welcome news.
But not totally.
Note what happened regarding the most controversial of the nominees, those to the National Labor Relations Board, which has been the site of an all-out war between Republican business interests and Democratic union interests for decades.
As part of the deal, the president agreed to withdraw two board members whose recess appointments had been nullified by the U.S. Court of Appeals for the District of Columbia and to appoint two new members in their stead. In exchange, Republicans agreed to give them a speedy hearing and confirmation vote to ensure that the agency would have a working majority.
So what did the president do? After checking with the president of the AFL-CIO, he appointed the labor organization’s associate general counsel, Nancy Schiffer, and before that a top lawyer for the United Auto Workers. I’ve spoken with Schiffer on several occasions, and she struck me as knowledgeable and intelligent. She had previously worked on the NLRB staff. But the fact that she is one of the labor movement’s top lawyers is hardly going to leave employers with a matter before the NLRB confident that their cases will be decided by impartial, independent-minded board members.
Indeed, it is precisely this politicization of what is supposed to be an independent agency with quasi-judicial powers that has led to the partisan politicization of the confirmation process in the Senate. In terms of NLRB appointments, it is now standard practice for Democratic presidents to nominate top lawyers for labor unions and for Republican presidents to nominate officials from the virulently anti-union National Right to Work Committee or the U.S. Chamber of Commerce. In other cases, they name Senate staffers from their respective parties who have proven track records of protecting union or employer interests.
It wasn’t always this way. In the past, presidents generally aimed to appoint to the board people who, to be sure, were broadly sympathetic to their party’s views on labor issues but were nonetheless respected, independent lawyers who could be relied on to follow law and precedent and uphold the agency’s reputation for impartiality. In recent years, however, every time the White House changes party, the appointment of unabashed partisans to a new board majority has meant that the agency has lurched back and forth from one activist stance to another, undermining its credibility.
It’s a big country out there. Outside the ideological and special-interest hothouse that is Washington, there are tens of thousands of knowledgeable and experienced lawyers, mediators, academics and judges who would be honored to spend a term in Washington overseeing the nation’s labor laws and making sure they work for both employees and employers. Maybe some day there will be a White House Personnel Office that actually takes it as its mission to recruit such people.
And it’s not just the NLRB where this polarization has occurred. To varying degrees, it is a cancer that has also infected other independent agencies, including the Federal Elections Commission, the Securities and Exchange Commission and the Commodities Futures Exchange Commission. It has even infected federal courts of appeals, which are now widely viewed by the public, the litigants, the White House, the Senate and even the judges themselves as battlefields in an ongoing partisan and ideological struggle.
The only way to stop the Hatfields & McCoy tactics in Washington is just to stop engaging in them. Yes, that includes senators not gratuitously blocking confirmation of qualified nominees for positions in the government. But it also ought to include presidents not making blatantly politicized, in-your-face nominations in the first place.