AFJ: Senate restores NLRB to full functioning

       Alliance for Justice President Nan Aron released the following statement today in response to the confirmation of President Obama’s nominees to the National Labor Relations Board: 

        With these votes the Senate restores the National Labor Relations Board to full functioning.  That will ensure fundamental protections not just for union members but for all American workers.

For 75 years, the National Labor Relations Act has been the rulebook for relations between businesses and their workers.   But a rulebook is useless without an umpire.  The members of the NLRB are the umpires.  Soon they’ll be back on the field.

But that is not enough.  Obstruction of judicial nominees is every bit as debilitating as obstruction of executive branch nominees.  The same willingness to allow, at long last, yes-or-no votes on the NLRB nominees must extend to the nominees for the D.C. Circuit and other judgeships.

AFJ: Reported agreement on Obama nominees "an important step forward"

               Alliance for Justice President Nan Aron released the following statement today in response to media reports of an agreement concerning seven of President Obama’s executive branch nominations:

                The agreement, as described in media accounts, is an important step forward for the United States Senate and for the American people whose interests are served when government functions.  But it is not the end of the story.  There will be more legislation, more executive nominations and judicial nominees upon which the Senate will need to act over the next several months.  We hope the spirit of this agreement carries over to that business as well.  But if it does not, all options remain on the table for allowing the Senate to evolve in ways that make it a more effective institution.

              Today’s events demonstrate what can happen when a strong, unified, principled stand is taken against obstruction and dysfunction, and we will work hard to ensure that this same sense of purpose and firm resolve will be present when judicial nominations and vital legislation make their way to the Senate floor in the coming months.

            If this agreement fails to cure the culture of obstruction, we will fight for the reforms necessary to end the paralyzing gridlock that has characterized the Senate over the last several months.
 
         

Democracy on trial in the Senate

Republicans seek to obstruct Obama
executive, judicial nominees

Nan Aron

By Nan Aron
President, 
Alliance for Justice

            With battles ahead over President Obama’s choices for Secretary of Labor, Environmental Protection Agency Administrator, Consumer Financial Protection Bureau Director and the National Labor Relations Board, and fights over the nation’s second most important court likely to follow, democracy itself is on trial in the United States Senate.

            If Republicans persist in preventing yes-or-no votes on President Obama’s executive and judicial nominees, the only recourse will be for the majority to revisit Senate rules reform and put an end once and for all to Republican efforts to subvert the Senate’s constitutional obligation to provide advice and consent.
 

Richard Cordray

        The first test is likely to come this week. Senate Majority Leader Harry Reid says he will schedule a vote on President Obama’s nominee to lead the Consumer Financial Protection Bureau, Richard Cordray.  The CFPB was created as part of the Wall Street Reform law as an agency solely devoted to protecting consumers of financial products from mortgages to credit cards.  In a transparent effort to protect the very special interests that collapsed our economy and brought ruin to so many Americans, Republicans so far have refused to confirm Cordray. In fact, Republicans have said they won’t confirm anyone to run the CFPB.

            Republicans have been equally obstinate about the president’s nominees for the National Labor Relations Board, the independent agency charged with protecting the rights of workers – and a hearing on those nominees just last week showed no thaw in that obstinacy.  That’s why Cordray and some of the current NLRB members had to be named through recess appointments.

            But three Republican-appointed judges of the United States Court of Appeals for the District of Columbia Circuit, breaking with decades of precedent, decided that the President doesn’t have the power to make such recess appointments.  The decision is part of a pattern in which the D.C. Circuit consistently sides with corporate interests over workers and consumers – blocking Wall Street reforms, undermining labor rights, and rolling back environmental protections.

            So it’s no wonder that Republicans also are trying to prevent the president from restoring balance to the D.C. Circuit, which is currently dominated by Republican appointees.  The latest underhanded tactic from Republican Senators amounts to a ‘pre-emptive filibuster’ – an effort to eliminate three of the four vacant judgeships on the court in order to prevent President Obama from filling those seats.

Tom Perez

          But even that isn’t the end of the obstruction.  We are pleased that two Senate committees were able to overcome Republican stalling tactics and vote last week in favor of President Obama’s highly-qualified nominees to lead the Department of Labor and the Environmental Protection Agency.  The next step must be swift yes-or-no votes by the full Senate on the nominations of Tom Perez and Gina McCarthy.

            Unfortunately, these two outstanding nominees’ ordeals may be far from over.  All of the Republicans on both committees voted no.  As AFJ has pointed out before, to Senate Republicans, one of the only things as bad as a Labor Secretary who will protect working people is an Environmental Protection Agency administrator who will protect the environment.

           A solid majority of voters twice has made clear that they support the approach to government taken by Barack Obama.  In response, the Republican strategy boils down to rule-or-ruin.  They have shown themselves prepared to paralyze government, no matter what the cost to the American people.  In the days ahead, we will see if the Senate is ready to break free of this paralysis.

WHY JUDGES MATTER: NLRB, leadership of consumer agency threatened by DC Court of Appeals ruling

The issue is arcane, but the consequences are huge.  It’s a case study of how the Senate Republican minority’s abuse of the filibuster to block appointees, and the failure to fill vacancies on what is often described as the nation’s second highest court combined to produce potentially disastrous consequences.

 

Hundreds of decisions by the National Labor Relations Board (NLRB) could be invalidated and the entire agency effectively shut down if a ruling by three Republican appointees to the U.S. Court of Appeals for the District of Columbia Circuit is upheld by the U.S. Supreme Court.

The decision involves three appointees to the NLRB, a referee for disputes in the American workplace whose power extends beyond unionized workplaces.  The five-member NLRB board can’t function without at least three vacancies filled.  But for months Senate Republicans blocked three nominations by President Obama. 

Finally, the president resorted to what is known as a “recess appointment” – naming his nominees to the NLRB while the Senate was away for the holidays.  But Republicans used a technicality to try to pretend the Senate still was in session: Every few days someone would stop by the near-empty Senate chamber, declare the Senate “in session” and then promptly declare the session over.

This sham was good enough for three Republican-appointed D.C. Circuit judges. Ignoring longstanding practice and precedent, they ruled that the recess appointments were unconstitutional.  Moreover, the ruling could invalidate all the decisions made by those three recess appointees over the last year.

But wait, there’s more: Since one seat on the NLRB already is vacant that means, if the decision is upheld, the NLRB will have only one member.  As so long as it doesn’t have 3 members, it can’t function at all. 

Richard Cordray

And still more: Richard Corday, who heads the Consumer Financial Protection Board, was appointed the same way.  That happened after Senate Republicans first made clear they would never allow a vote on President Obama’s first choice, Elizabeth Warren (a decision they may now regret, given the job she ultimately got instead) and then stalled the nomination of Cordray.  A separate case is challenging the Cordray appointment.

None of this should come as any surprise.  Last October, Pulitzer-prize winner Steven Pearlstein, then a columnist for The Washington Post, blasted the D.C. Circuit for its extreme right-wing activism.

He wrote:

…[D]ysfunctional government has become the strategic goal of the radical fringe that has taken over the Republican party. After all, a government that can’t accomplish anything is a government that nobody will like, nobody will pay for and nobody will want to work for. For tea party conservatives, what could be better than that?

Nowhere has this strategy been pursued with more fervor, or more success, than the U.S. Court of Appeals for the District of Columbia Circuit, where a new breed of activist judges are waging a determined and largely successful war on federal regulatory agencies.

It didn’t have to be this way.  As Pearlstein also pointed out:

The prospect that some balance might be restored to the nation’s second-most powerful court has long since faded after Senate Republicans successfully filibustered every nominee put forward by President Obama for the three vacant seats on the D.C. Circuit.

That was then.  Soon there will be  four vacant seats.

Here’s why that matters: The 11-member D.C. Circuit currently has eight active members—five Republican appointees and three Democratic appointees—and, as noted above, three vacancies (the fourth vacancy will occur on February 12^th).  If the president had been able to nominate and confirm three people to fill the vacancies, the Court would have had a Democratic majority.  That means either the panel decision could have been different or the entire eleven-member court may have been more likely to review the panel's decision – with a six-to-five majority appointed by Democratic presidents.  But since that didn’t happen, Pearlstein wrote, there was only one other alternative:

The only hope now is that Chief Judge David Sentelle and some of the court’s more intellectually honest conservatives will move to rein in the judicial radicals before they turn the courts into just another dysfunctional branch of a dysfunctional government.

Guess who wrote the decision in the NLRB case: David Sentelle.