Obama bypasses Senate, sneaks labor lawyers onto board

Chris Rizo Mar. 27, 2010, 5:28pm

WASHINGTON (Legal Newsline) -- President Barack Obama said Saturday he will make recess appointments of 15 of his pending nominees, including his controversial pick to the National Labor Relations Board.

Craig Becker's nomination to the powerful post has drawn widespread and vocal criticism from the business community and Republicans, who say his ties to unions are too strong for him to be a neutral arbiter in labor disputes.

Critics often point to a 1993 Minnesota Law Review article where he said union election rules should be rewritten in favor of workers seeking to organize. Additionally, they say Becker has been a vocal supporter of the Employee Free Choice Act, legislation known as "card check" that would make it easier for workers to unionize.

Last week, all 41 Republican U.S. senators urged Obama in a letter not to use his power of recess appointment to place Becker on the five-member panel. The NLRB has had only two members for the past two years.

Becker is former counsel for AFL-CIO and the Service Employees International Union. His appointment was blocked earlier this year by Republicans and a pair of Democrats. He was rejected by the full Senate last month by a 52-43 vote, eight votes shy of the 60 needed for confirmation.

Also through recess appointment labor lawyer Mark Pearce will join the National Labor Relations Board, which was created in 1935 to hear cases involving workers' rights to organize.

Obama can place Becker and Pearce on the NLRB without Senate approval -- through a congressional recess appointment -- under Article II, Section II of the U.S. Constitution.

The Senate Republican leader, Mitch McConnell of Kentucky, decried Obama's decision.

"This is a purely partisan move that will make a traditionally bipartisan labor board an unbalanced agenda-driven panel," McConnell said. In a separate statement, Sen. John McCain of Arizona, the 2008 Republican presidential nominee, criticized the appointments.

"This is clear payback by the administration to organized labor," McCain said.

Becker and the others to be given recess appointments can only serve through the end of 2011, the end of the next congressional session, unless they gain Senate confirmation.

In a statement, Obama said his nominations have been languishing in the Senate without any action.

"The United States Senate has the responsibility to approve or disapprove of my nominees," Obama said in a statement. "But if, in the interest of scoring political points, Republicans in the Senate refuse to exercise that responsibility, I must act in the interest of the American people and exercise my authority to fill these positions on an interim basis."

Obama said former Republican President George W. Bush had made 15 recess appointments by this point in his presidency. Perhaps most notably, Bush used a recess appointment in 2005 to name John Bolton United States Ambassador to the United Nations.

In all, 217 of Obama's nominees are awaiting Senate confirmation.

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