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Obama pulls controversial NLRB nominee
Wednesday, November 12, 2014

Source: Washington Examiner, Sean Higgins President Obama pulled the nomination of Sharon Block to serve on the National Labor Relations Board Wednesday, backing out of a potential confrontation with Senate Republicans.

Block was a controversial nominee, and time was running out for the administration to fill a vacancy at the NLRB before the Republican majority takes over in January.

Senate Democrats reacted with dismay. "It is truly unfortunate that Sharon Block, a dedicated public servant, will not have this opportunity to serve," said Sen. Tom Harkin, D-Iowa., chairman of the Senate Health, Education, Labor and Pensions Committee. Block had been a staffer on the committee and had worked for the late Sen. Ted Kennedy, D-Mass.

Harkin's statement did not say why the nomination was pulled but referred to "circumstances that are completely out of her control." A Senate Republican aide said Senate GOP Leader Mitch McConnell, R-Ky., told Obama the GOP caucus would fight the nomination.

"The president blinked," the aide said.

The NLRB is the federal agency that enforces labor laws. Its members are appointed by the president and confirmed by the Senate. Republicans have long complained that it has tilted heavily pro-labor under Obama.

Harkin said the White House will nominate Lauren McFerran, the committee's chief labor counsel, to replace Block. "Ms. McFerran is an incredibly talented lawyer with deep knowledge and strong character who will be a great asset to the board."

This was the third time Block had been nominated by Obama to serve on the NLRB since 2011 and was one of Obama's 2012 recess appointments to the board. After the appointments were declared invalid in federal court, Obama nominated her again in 2013 with the other sitting board members. The administration hoped he could resolve the legal issues surrounding the recess appointees by getting them confirmed by the full Senate. After a tense Senate showdown that summer between Democratic and Republican lawmakers over the use of the filibuster rule, Obama withdrew Block's nomination in July 2013 as part of a deal to get the other NLRB nominees confirmed.

The Supreme Court ruled in June in the case Noel Canning v. NLRB that Block's appointment, as well as that of fellow recess appointee Richard Griffin, was unconstitutional. The justices' ruling effectively voided all of the rulings the NLRB had made during her tenure, since it meant the board had lacked a legal quorum. The NLRB has been re-litigating those cases since.

Obama subsequently renominated Block in July to replace NLRB board member Nancy Schiffer, whose term ends Dec. 16.

Senate Republicans argued Block's renominations amounted to a slap at them.

"Ms. Block showed a troubling lack of respect for the Constitution, the separation of powers, and the Senate’s constitutional role of advice and consent by continuing to serve on the board and participate in hundreds of decisions after the D.C. Circuit and then the Fourth Circuit found her appointment unconstitutional," Sen. Lamar Alexander, R-Tenn., top Republican on the Senate HELP committee, said in September.

Nevertheless, Block's nomination passed the committee that month and was widely expected to get a quick vote in the Senate's post-election lame duck session. Senate Majority Leader Harry Reid, D-Nev., had restricted filibusters on presidential nominations, allowing simple majority votes, so even critics expected her to be approved.

However, the Senate has a limited amount of time in the lame duck session and much to do. Senate Republicans would have needed only to disrupt or delay the agenda to sideline a vote on Block. If the White House does not get an NLRB nominee approved before the Senate session ends, it will likely find it very hard to get any nominee through next year when the Republicans will have the majority.

That's significant because with an empty seat after Schiffer leaves, the NLRB the board will have two Democratic members and two Republican ones and would likely gridlock on most controversial cases. That would suit Senate Republicans just fine.

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