In a surprise move Tuesday, President Obama nominated two Republican lawyers to fill vacancies on the National Labor Relations Board, the quasi-independent federal agency that referees disputes between management and labor in the private sector. There are no obvious problems with Harry I. Johnson III or Philip A. Miscimarra, who, if confirmed by the Senate would occupy NLRB seats required by law to go to GOPers when a Democrat is in the White House. Even so, these nominations should be understood for what they are, which is Obama's desperate attempt at damage control.
Obama has cynically used the NLRB throughout his White House tenure to reward his Big Labor allies and to punish those in the business community whom he perceives to be among his enemies. That effort has run aground more recently, however, as the abuses grew steadily more serious until a federal judge finally called a halt.
Republicans should refuse to confirm any NLRB nominees regardless of their party affiliation until Obama stops abusing the recess appointment process and agrees to reforms designed to restore the NLRB's credibility.
For those who haven't been watching this train wreck, Obama has unilaterally declared when the Senate was in recess, then used such obviously illegal declarations as the occasion for making appointments to the board. Last year, for example, Obama used one of these unlawful recesses to appoint Sharon Block, former aide to Sen. Ted Kennedy, and Richard Griffin, formerly of the AFL-CIO's Lawyers Coordinating Committee. But a U.S. Court of Appeals voided those appointments as unconstitutional since it is for the Senate, not Obama, to decide when the Senate is in recess. Obama has since ostentatiously appealed the ruling and directed his NLRB appointees to continue issuing decisions.
The Appeals Court ruling deprived the board of a legal quorum for more than year, thus rendering null and void all rulings it has issued in the ensuing months. So the Supreme Court now must step in to hear Obama's appeal. The justices likely won't consider the case until October at the earliest though. In the meantime, the board is essentially frozen, unable to issue rulings in labor-management disputes because it lacks a valid quorum.
Hence the nominations of Republicans Johnson and Miscimarra (along with the renomination of NLRB Chairman Mark Gaston Pearce, a Democrat). Obama is effectively asking Senate Republicans to bail him out of a nasty situation of his own doing. Expect Obama and his Senate allies to push hard for prompt confirmation hearings and votes because the result would be restoration of a quorum and a 3-2 Democratic majority.
There are far more important separation-of-power issues at stake in the case that should be resolved by the high court to insure that Obama will be blocked from further abusing his recess appointment privilege. Congress should do nothing that might short-circuit the case -- such as making Block and Griffin regular appointees -- before the justices can weigh in. In the meantime, Senate Republicans should put a hold on all NLRB nominations until the Supreme Court rules.