by Jeremy Leaming
Pushing back against Republican-led efforts in Congress to greatly hobble the National Labor Relations Board, President Obama is urging swift confirmation of three individuals to the five-member board.
Senate Republicans have strived to keep the president from filling vacancies on the NLRB, which is charged with protecting 
workers’ rights. The NLRB must have three members to take any action and two of the current members were appointed via the recess appointments process, which a federal appeals court earlier this year said was done in an unconstitutional manner. This week the Republican-led House of Representatives is considering a measure that would shutter the NLRB until it has three members it considers legitimate. Republican senators have sought to keep a pro-corporate tilt to the NLRB or make it inoperative.
In January 2012, Obama appointed Richard Griffin and Sharon Block to the NLRB during a congressional break. But then the U.S. Court of Appeals for the D.C. Circuit ruled that the president’s recess appointments violated the Appointments Clause of the Constitution. The ruling in Canning v. NLRB has been widely blasted as running counter to federal court precedent upholding recess appointments and more than a century of recess appointments made by other presidents. The NLRB has said it will appeal the D.C. Circuit’s opinion to the Supreme Court. Harvard Law School Professor Laurence Tribe in a column for The New York Times argued that Obama’s recess appointments passed constitutional muster, saying the Constitution clearly reserves “the authority the president needs to carry out his basic duties ….”
The president, however, is seeking to keep the NLRB alive during the appeals process. Obama re-nominated NLRB Chairman Mark Pearce, a Democrat, and two Republicans, Harry I. Johnson III and Philip A. Miscimarra, The Associated Press reports. Earlier this year, Obama nominated Democrats Block and Griffin to full terms on the NLRB.
In announcing today’s nominees, Obama noted that the NLRB “plays a vital role in our efforts to grow the economy and strengthen the middle class. With these nominations there will be five nominees to the NLRB, both Republicans and Democrats, awaiting Senate confirmation. I urge the Senate to confirm them swiftly so that this bipartisan board can continue its important work on behalf of the American people.”
AFL-CIO President Richard Trumka lauded the president’s action saying, “For America’s workers, business and the promotion of healthy commerce, putting forward a full, bipartisan package of nominees to the NLRB is the right thing to do.”
Although the nominees include two who do not share the AFL-CIO’s staunch support of workers’ rights, Trumka said the “labor movement understands that when the NLRB is not at full strength and cannot enforce its orders, America’s economy falls out of balance, as it is today with record inequality and a shrinking middle class.”
ctured) to one of the four vacant seats on the U.S. Court of Appeals for the D.C. Circuit.
as since been adopted at least partially by 34 states, a non-partisan commission (usually with close ties to the state bar) reviews candidates for a judicial vacancy, and produces a list of people from which the governor can make an appointment. If the governor doesn’t make an appointment, the selection committee can put a judge on the bench itself. The only popular “check” on the process is a retention election that is typically held once the judge has completed one year of service.