Commentary Magazine


Topic: National Labor Relations Board

High Drama at the Court Tomorrow

Tomorrow at 10 a.m., the Supreme Court will hear oral arguments on the case of National Labor Relations Board v. Noel Canning. It is a very important case, which is why the court is allowing 90 minutes of oral argument instead of the usual sixty. You can find the legal background here on the indispensable www.scotusblog.com, which will be live-blogging the argument tomorrow morning.

On December 13, 2011, President Obama nominated two people to the National Labor Relations Board, just days before Congress adjourned for the holidays. On January 4, 2012, even before Congress had really opened for business for its second session, which began January 3, he gave them recess appointments to the board. The power to do this is in Article II, Section 2: “The president shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

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Tomorrow at 10 a.m., the Supreme Court will hear oral arguments on the case of National Labor Relations Board v. Noel Canning. It is a very important case, which is why the court is allowing 90 minutes of oral argument instead of the usual sixty. You can find the legal background here on the indispensable www.scotusblog.com, which will be live-blogging the argument tomorrow morning.

On December 13, 2011, President Obama nominated two people to the National Labor Relations Board, just days before Congress adjourned for the holidays. On January 4, 2012, even before Congress had really opened for business for its second session, which began January 3, he gave them recess appointments to the board. The power to do this is in Article II, Section 2: “The president shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

The original purpose of this provision was to provide a means, at a time when travel was extremely slow and the Senate was likely to be out of session for months at a time, of appointing federal officials temporarily to carry on the business of the government when the Senate was unavailable to confirm the appointment. But presidents had increasingly been using it when the Senate refused to have an up-or-down vote on a nominee, installing the nominee when the Senate had recessed sometimes for only a few days. No one seriously challenged a president’s constitutional right to do so. Indeed, in 2007, the Senate, under Majority Leader Harry Reid, had begun holding pro-forma sessions every couple of days precisely to deny President George W. Bush the power of making recess appointments.

But Obama struck when the Republicans tried to do the same after they took the House in 2010. By having the House not adjourn, the Senate was prevented from doing so as well under Article I, Section 5. Obama simply declared the Senate not to be in real session and made the recess appointments, even though the Senate, far from lollygagging on the confirmation process, had not even had time to have the nominees—nominated less than three weeks earlier and with the holidays intervening—vetted by the FBI or to schedule a committee hearing on them. (Why did the president wait until January 4, and not just appoint them the instant the Senate began holding pro-forma sessions in mid-December? Simple: By waiting until January 4, when the next session of the Senate had officially begun, he secured their positions until the end of 2013 instead of just until the end of 2012.)

When a company named Noel Canning subsequently lost a decision at the NLRB, it sued, claiming the board was illegally constituted. The D.C. Circuit Court agreed a year ago, (see here and here). The three-judge panel ruled, unanimously, that the recess power could only be used during “the recess,” not “a recess,” of the Senate, i.e. only when it had adjourned for the year. By a 2-to-1 vote it ruled that the vacancy had to occur during that recess as well, not earlier. (The dissenting judge sympathized with that judgment, but thought it irrelevant to the case at hand.)

The Supreme Court could duck the issue, saying that this was a political dispute between the two other branches and they would have to sort it out between themselves, overturning the D.C. Circuit’s decision. But to do so would, in effect, gut the Senate’s power to advise and consent to executive branch appointments by allowing the president, not the Senate, to decide when the Senate is in session. Presidents would be free to make recess appointments if the Senate adjourned for lunch. But to uphold the D.C. Circuit ruling in its entirety would sharply curtail the long-standing practice, thus greatly limiting the president’s power in this regard.

This is high constitutional drama.

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RE: Obama’s Power Grab Slapped Down

As a follow-up to my previous post, I have now read the decision, and it is a very strong one indeed.

All three judges agreed that the Senate is only in recess when it has adjourned sine die (Latin for “without a day,” i.e. without setting a date to meet again). This happens only at the end of the first session of a Congress when the second session will begin (as per Amendment XX, Sec. 2) on the next January 3rd, or at the end of the second session, when a newly elected Congress will assemble on that date.

After Congress has adjourned sine die, the President can only call it back into session.

Further, two of the judges ruled that in order for the President to exercise the recess appointment power, the vacancy must have come about during the recess following a sine die adjournment, not merely happen to exist during such a recess. The third judge, while expressing some sympathy for this interpretation, thought that it did not have to be reached in order to decide this case and therefore shouldn’t have been part of the decision.

Assuming this decision holds up—and it is powerfully argued—President Obama’s overreach here has had the effect of severely limiting his power to make recess appointments.

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As a follow-up to my previous post, I have now read the decision, and it is a very strong one indeed.

All three judges agreed that the Senate is only in recess when it has adjourned sine die (Latin for “without a day,” i.e. without setting a date to meet again). This happens only at the end of the first session of a Congress when the second session will begin (as per Amendment XX, Sec. 2) on the next January 3rd, or at the end of the second session, when a newly elected Congress will assemble on that date.

After Congress has adjourned sine die, the President can only call it back into session.

Further, two of the judges ruled that in order for the President to exercise the recess appointment power, the vacancy must have come about during the recess following a sine die adjournment, not merely happen to exist during such a recess. The third judge, while expressing some sympathy for this interpretation, thought that it did not have to be reached in order to decide this case and therefore shouldn’t have been part of the decision.

Assuming this decision holds up—and it is powerfully argued—President Obama’s overreach here has had the effect of severely limiting his power to make recess appointments.

It will be far more constrained than the power such presidents as Eisenhower and George W. Bush exercised. Indeed, since Congress is now in session most of the year, unless the vacancy occurs in the month of December, after Congress has gone home for the year, he no longer has any recess appointment power.

Serves him right.

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Obama’s Power Grab Slapped Down

President Obama suffered a serious embarrassment today when the U.S. Court of Appeals for the District of Columbia unanimously ruled that he overstepped his constitutional powers when he used recess appointments to name three members to the National Labor Relations Board on January 4th, 2012.

Although the Senate was holding pro forma sessions, Obama said that it was really in recess because it was conducting no business over the 20-day Christmas break. In other words, Obama sought to establish the principle that he, not the Senate, was entitled to decide when the Senate was in session.

Were he to prevail in this assertion of presidential power, it would have gutted the Senate’s power to advice and consent to nominations to executive posts and thus eliminated one of the Constitution’s carefully designed checks on executive power.

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President Obama suffered a serious embarrassment today when the U.S. Court of Appeals for the District of Columbia unanimously ruled that he overstepped his constitutional powers when he used recess appointments to name three members to the National Labor Relations Board on January 4th, 2012.

Although the Senate was holding pro forma sessions, Obama said that it was really in recess because it was conducting no business over the 20-day Christmas break. In other words, Obama sought to establish the principle that he, not the Senate, was entitled to decide when the Senate was in session.

Were he to prevail in this assertion of presidential power, it would have gutted the Senate’s power to advice and consent to nominations to executive posts and thus eliminated one of the Constitution’s carefully designed checks on executive power.

The administration will most likely appeal to the Supreme Court. But that Court could let the lower court’s decision stand simply by refusing to grant a writ of certiorari, which is necessary to appeal most cases to the high court. The fact that the ruling from a three-judge panel was unanimous greatly increases the chances that the court will not “grant cert,” to use the jargon of the court.

Assuming this decision stands, all the decisions of the NLRB since January 4th, 2012, will be void. His appointment of Richard Cordray head to the new, and very powerful Consumer Financial Protection Bureau, made at the same time, and being challenged in a separate case, would also fall.

Presidents have increasingly used recess appointments to get around Senate obstruction, usually a filibuster. But this use of the power was brazen as Obama had only just nominated the men and the Senate had not had any time in which to act.

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Ex-NLRB Counsel: Ignore WARN Act at Your Own Peril

The Obama administration is continuing to encourage employers to ignore the WARN Act, which would require them to inform employees before the presidential election that they may face layoffs due to sequestration. But a former counsel for the National Labor Relations Board and one of the crafters of the WARN Act is warning employers that they would open themselves up to worker lawsuits by ignoring the law. HuffPo reports:

But John Irving, a former National Labor Relations Board counsel who helped shape some provisions of the WARN Act, said he would tell major defense contractors to think twice about disregarding the WARN Act.

It is unlikely that the DOL guidance would hold up in court if a terminated worker sued his employer for not giving proper notice, Irving said.

In other words, defense contractors cannot fall back on the Department of Labor memo if the federal government lurches off the fiscal cliff and a laid-off employee had not received a pink slip by early November.

“It strikes me that the guidance is so far off the mark that you wonder why it’s being issued, and it’s not a regulation — it’s a sort of statement of opinion, which is coming out because of what could be the consequence,” Irving said. “It’s trying to blunt that and head it off in a way makes it look like no notice is not necessary when it may be.”

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The Obama administration is continuing to encourage employers to ignore the WARN Act, which would require them to inform employees before the presidential election that they may face layoffs due to sequestration. But a former counsel for the National Labor Relations Board and one of the crafters of the WARN Act is warning employers that they would open themselves up to worker lawsuits by ignoring the law. HuffPo reports:

But John Irving, a former National Labor Relations Board counsel who helped shape some provisions of the WARN Act, said he would tell major defense contractors to think twice about disregarding the WARN Act.

It is unlikely that the DOL guidance would hold up in court if a terminated worker sued his employer for not giving proper notice, Irving said.

In other words, defense contractors cannot fall back on the Department of Labor memo if the federal government lurches off the fiscal cliff and a laid-off employee had not received a pink slip by early November.

“It strikes me that the guidance is so far off the mark that you wonder why it’s being issued, and it’s not a regulation — it’s a sort of statement of opinion, which is coming out because of what could be the consequence,” Irving said. “It’s trying to blunt that and head it off in a way makes it look like no notice is not necessary when it may be.”

Obama’s Department of Labor must realize it’s asking defense contractors to put themselves at legal risk by asking them to ignore the law. The DOL doesn’t enforce the WARN Act; it’s enforced solely through legal challenges by employees. President Obama knows this all too well, since he personally supported stricter federal enforcement mechanisms for the WARN Act during his time in the senate.

If defense contractors don’t give 60 days notice of layoffs and sequestration kicks in as planned on Jan. 2 — not an unlikely scenario, since congress’s track record on compromising on these issues isn’t great — then employers could be hit with mass lawsuits. Tort attorneys must be salivating at the prospect.

And yet the White House isn’t backing down from the DOL’s recommendation. At a hearing before the House Armed Services Committee yesterday, White House budget chief Jeffrey Zients claimed that sending out notices would be a “waste of taxpayer resources” and cause “unnecessary uncertainty”:

Appearing before the House Armed Services Committee, White House budget chief Jeffrey Zients defended recent guidance from the Department of Labor that advises firms against sending out layoff notices as the so-called “fiscal cliff” nears. The 23-year-old WARN Act requires some employers to send out pink slips 60 days ahead of a “reasonably foreseeable” event — in this case, massive spending cuts to defense and domestic programs triggered by the failure of the budget “super committee” last fall. …

“These potential plant closings or layoffs are speculative and unforeseeable, so to give blanket notices both wastes taxpayer resources and creates unnecessary uncertainty,” Zients responded. “So clearly the companies that you just talked about need to absorb this guidance from the Department of Labor, which is very clear, and they need to make their own decisions.”

Funny, the Obama administration hasn’t seemed overly concerned with “wasting taxpayer resources” in the past. And the idea that sending out paper or electronic notices of potential layoffs would be a major drain on taxpayers is laughable.

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Another Questionable Appointee, Another Recess Appointment

Obama is using the recess appointment again. Recall that is how he got the SEIU’s lawyer on to the National Labor Relations Board and how he got Donald Berwick past the Senate’s scrutiny. (“‘Senate confirmation of presidential appointees is an essential process prescribed by the Constitution that serves as a check on executive power and protects Montanans and all Americans by ensuring that crucial questions are asked of the nominee — and answered,’ [Max] Baucus said in a statement.”)

Now he’s at is again, this time to get an ambassador to El Salvador through. What was her problem? Josh Rogin explains that Mari Carmen Aponte is going to be pushed through “despite lingering GOP concerns about her long-ago relationship with a Cuban operative.” Obama’s not serious, is he? Oh, yes indeed:

Aponte’s nomination had been stalled as of April due to objections by Sen. Jim DeMint, R-SC, who prevented the Senate Foreign Relations Committee from voting on the nomination because he was worried about a romantic involvement she had in the 1990s with Robert Tamayo, a Cuban-born insurance salesman who was alleged to have ties to both the FBI and Fidel Castro’s intelligence apparatus.

DeMint and other Republicans wanted access to all of the FBI’s records on the relationship. The FBI interviewed both Aponte and Tamayo about the matter back in 1993, but Aponte has admitted she declined to take a lie-detector test. She withdrew herself from consideration to be ambassador to the Dominican Republic in 1998 after then Sen. Jesse Helms promised to ask invasive questions about the relationship at her hearing, citing “personal reasons.”

Translation: the Clinton administration was not going to go to bat for this woman. But not Obama. Off she will go, with no examination of her ties to Castro.

This is yet another instance of both Obama’s preference for appointing questionable characters and his need (which likely will intensify with time) to resort to strong-arm tactics. (After all, none of the Democrats in the Senate really wanted to vote for this woman, did they?) This does not seem to be the sort of president who’s going to tack to the center and learn the art of compromise after November. But we’ll see.

Obama is using the recess appointment again. Recall that is how he got the SEIU’s lawyer on to the National Labor Relations Board and how he got Donald Berwick past the Senate’s scrutiny. (“‘Senate confirmation of presidential appointees is an essential process prescribed by the Constitution that serves as a check on executive power and protects Montanans and all Americans by ensuring that crucial questions are asked of the nominee — and answered,’ [Max] Baucus said in a statement.”)

Now he’s at is again, this time to get an ambassador to El Salvador through. What was her problem? Josh Rogin explains that Mari Carmen Aponte is going to be pushed through “despite lingering GOP concerns about her long-ago relationship with a Cuban operative.” Obama’s not serious, is he? Oh, yes indeed:

Aponte’s nomination had been stalled as of April due to objections by Sen. Jim DeMint, R-SC, who prevented the Senate Foreign Relations Committee from voting on the nomination because he was worried about a romantic involvement she had in the 1990s with Robert Tamayo, a Cuban-born insurance salesman who was alleged to have ties to both the FBI and Fidel Castro’s intelligence apparatus.

DeMint and other Republicans wanted access to all of the FBI’s records on the relationship. The FBI interviewed both Aponte and Tamayo about the matter back in 1993, but Aponte has admitted she declined to take a lie-detector test. She withdrew herself from consideration to be ambassador to the Dominican Republic in 1998 after then Sen. Jesse Helms promised to ask invasive questions about the relationship at her hearing, citing “personal reasons.”

Translation: the Clinton administration was not going to go to bat for this woman. But not Obama. Off she will go, with no examination of her ties to Castro.

This is yet another instance of both Obama’s preference for appointing questionable characters and his need (which likely will intensify with time) to resort to strong-arm tactics. (After all, none of the Democrats in the Senate really wanted to vote for this woman, did they?) This does not seem to be the sort of president who’s going to tack to the center and learn the art of compromise after November. But we’ll see.

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Another Ally, Another Snub

It really doesn’t pay to be an ally of the U.S. these days. That status confers on a nation’s leaders the opportunity to be publicly berated and to see prior agreements evaporate (e.g., the Bush-Sharon settlement deal, the missile-defense arrangement with Eastern Europe). And when it comes to our allies’ security and economic needs, Obama nearly always has some higher priority. A case in point (another one) is South Korea. Fred Hiatt writes:

In a world of dangerously failed states and willful challengers to American leadership, South Korea is an astoundingly successful democracy that wants to be friends. But will America say yes? That seemed to be the question perplexing President Lee Myung-bak when I interviewed him here last Wednesday, though he described relations at the moment as excellent. …  The two nations have signed a free-trade agreement that Lee believes would — in addition to bringing obvious economic benefit to both sides — seal a crucial alliance and promote stability throughout Northeast Asia. But President Obama has yet to submit the agreement to Congress for ratification or say when he might do so…

Obama has expressed general support for increasing trade with South Korea but hasn’t committed to the pact that he and Lee inherited from their predecessors. Every analysis shows it would benefit most American consumers and industries, but it faces opposition from Ford Motor, some union leaders and some Democrats in Congress.

Unlike Bill Clinton, who took on his party’s special-interest groups, Obama has shown little stomach for standing up to Big Labor. Whether it’s a sweetheart deal on the health-care excise tax, an SEIU lawyer on the National Labor Relations Board, or a free-trade deal plainly in the interest of both the U.S. and a key ally, Obama is not one to tell the labor bosses no.

And so another ally gets the back of the hand. For a group that promised to “restore our standing in the world,” the Obami are going to be hard-pressed to show how it is we do that when their foreign policy consists of systematically stiffing our democratic friends around the world.

It really doesn’t pay to be an ally of the U.S. these days. That status confers on a nation’s leaders the opportunity to be publicly berated and to see prior agreements evaporate (e.g., the Bush-Sharon settlement deal, the missile-defense arrangement with Eastern Europe). And when it comes to our allies’ security and economic needs, Obama nearly always has some higher priority. A case in point (another one) is South Korea. Fred Hiatt writes:

In a world of dangerously failed states and willful challengers to American leadership, South Korea is an astoundingly successful democracy that wants to be friends. But will America say yes? That seemed to be the question perplexing President Lee Myung-bak when I interviewed him here last Wednesday, though he described relations at the moment as excellent. …  The two nations have signed a free-trade agreement that Lee believes would — in addition to bringing obvious economic benefit to both sides — seal a crucial alliance and promote stability throughout Northeast Asia. But President Obama has yet to submit the agreement to Congress for ratification or say when he might do so…

Obama has expressed general support for increasing trade with South Korea but hasn’t committed to the pact that he and Lee inherited from their predecessors. Every analysis shows it would benefit most American consumers and industries, but it faces opposition from Ford Motor, some union leaders and some Democrats in Congress.

Unlike Bill Clinton, who took on his party’s special-interest groups, Obama has shown little stomach for standing up to Big Labor. Whether it’s a sweetheart deal on the health-care excise tax, an SEIU lawyer on the National Labor Relations Board, or a free-trade deal plainly in the interest of both the U.S. and a key ally, Obama is not one to tell the labor bosses no.

And so another ally gets the back of the hand. For a group that promised to “restore our standing in the world,” the Obami are going to be hard-pressed to show how it is we do that when their foreign policy consists of systematically stiffing our democratic friends around the world.

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Obama’s Thugocracy

The White House chests are puffed, and they are marveling at their political muscle. Health care can be rammed through, and Israel can be bullied — so what else to do? Ah, run roughshod over the Senate. The Hill reports:

President Barack Obama on Saturday wielded his recess appointment powers for the first time, clearing 15 nominees to assume posts that have remained vacant for months due to insurmountable congressional roadblocks.

Among the 15 named just days before the Senate departs for Easter recess are Craig Becker and Mark Pearce, the White House’s two, hotly contested nominees for the National Labor Relations Board.

Big Labor bosses will coo approvingly over the NLRB appointments. After all, the SEIU and AFL-CIO’s lawyer is now going to make labor law. Meanwhile, any pretense of bipartisanship or moderation has evaporated:

Senate GOP Leader Mitch McConnell (Ky.) condemned the administration’s move on Saturday, adding that Becker’s appointment “is yet another episode of [the president] choosing a partisan path despite bipartisan opposition.”

“The president previously held that appointing an individual in this manner meant that the nominee would have ‘less credibility,’ and that assessment certainly fits this nomination,” the GOP leader said. “This is a purely partisan move that will make a traditionally bipartisan labor board an unbalanced agenda-driven panel.”

The only surprise: the radical lawyer Dawn Johnsen was not named to the Office of Legal Counsel. Perhaps the Obami have had enough of the accusations that the Justice Department, far from depoliticizing, has become a hotbed of ideologues.

This is the reality of Obama — unbending, ideologically extreme, and contemptuous of the other branches. He has revealed himself to be precisely what liberals used to rail against — until they got the levers of power. The Chicago pols are certainly plying their trade.

The White House chests are puffed, and they are marveling at their political muscle. Health care can be rammed through, and Israel can be bullied — so what else to do? Ah, run roughshod over the Senate. The Hill reports:

President Barack Obama on Saturday wielded his recess appointment powers for the first time, clearing 15 nominees to assume posts that have remained vacant for months due to insurmountable congressional roadblocks.

Among the 15 named just days before the Senate departs for Easter recess are Craig Becker and Mark Pearce, the White House’s two, hotly contested nominees for the National Labor Relations Board.

Big Labor bosses will coo approvingly over the NLRB appointments. After all, the SEIU and AFL-CIO’s lawyer is now going to make labor law. Meanwhile, any pretense of bipartisanship or moderation has evaporated:

Senate GOP Leader Mitch McConnell (Ky.) condemned the administration’s move on Saturday, adding that Becker’s appointment “is yet another episode of [the president] choosing a partisan path despite bipartisan opposition.”

“The president previously held that appointing an individual in this manner meant that the nominee would have ‘less credibility,’ and that assessment certainly fits this nomination,” the GOP leader said. “This is a purely partisan move that will make a traditionally bipartisan labor board an unbalanced agenda-driven panel.”

The only surprise: the radical lawyer Dawn Johnsen was not named to the Office of Legal Counsel. Perhaps the Obami have had enough of the accusations that the Justice Department, far from depoliticizing, has become a hotbed of ideologues.

This is the reality of Obama — unbending, ideologically extreme, and contemptuous of the other branches. He has revealed himself to be precisely what liberals used to rail against — until they got the levers of power. The Chicago pols are certainly plying their trade.

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Big Labor Savages Noncompliant Democrats

Big Labor is grouchy and out to throw its muscle around. The Hill reports:

Frustrated at seeing their legislative agenda stymied, unions are becoming increasingly active in competitive Democratic Senate primaries. Across the country, labor groups are using their organizational muscle early against candidates whom they see as having walked away from their agenda. By doing so, they’re exposing schisms between centrist and liberal Democratic lawmakers who have struggled to come through on the campaign promises made to union members. The Employee Free Choice Act (EFCA), healthcare reform and even a nominee to the little-known National Labor Relations Board have stalled in a Congress controlled by the largest majorities Democrats have enjoyed in a generation.

So the labor bosses are going to “play in the primaries,” backing candidates most enamored of stripping workers of the secret ballot and most infatuated with the special-interest group’s agenda. For incumbents that means they show independence from the Big Labor agenda at their own risk. Unions are making endorsements in the Pennsylvania and Colorado senate primaries and have backed Sen. Blanche Lincoln’s Democratic primary opponent, Lt. Gov. Bill Halter.

Republicans no doubt are delighted. They can point to the noxious influence of the special-interest groups (e.g., the Cadillac-plan tax deal), watch imperiled incumbent Democrats squirm, and then potentially face off against even more liberal and Big Labor–beholden opponents in the general election. Some labor officials have figured this out, and moan: “It does not take a pundit to recognize that November is going to be ugly for Democrats and eating our own in primaries makes no sense.”

So in the meantime, organized labor scoops up the handouts. For example, unions have prevailed upon the administration to roll back Bush-era regulations that expanded the financial-disclosure statements required of labor unions and their leaders. So much for transparency. But Big Labor is smart to get what they can now. After November, it’s likely to have far fewer sympathetic lawmakers.

Big Labor is grouchy and out to throw its muscle around. The Hill reports:

Frustrated at seeing their legislative agenda stymied, unions are becoming increasingly active in competitive Democratic Senate primaries. Across the country, labor groups are using their organizational muscle early against candidates whom they see as having walked away from their agenda. By doing so, they’re exposing schisms between centrist and liberal Democratic lawmakers who have struggled to come through on the campaign promises made to union members. The Employee Free Choice Act (EFCA), healthcare reform and even a nominee to the little-known National Labor Relations Board have stalled in a Congress controlled by the largest majorities Democrats have enjoyed in a generation.

So the labor bosses are going to “play in the primaries,” backing candidates most enamored of stripping workers of the secret ballot and most infatuated with the special-interest group’s agenda. For incumbents that means they show independence from the Big Labor agenda at their own risk. Unions are making endorsements in the Pennsylvania and Colorado senate primaries and have backed Sen. Blanche Lincoln’s Democratic primary opponent, Lt. Gov. Bill Halter.

Republicans no doubt are delighted. They can point to the noxious influence of the special-interest groups (e.g., the Cadillac-plan tax deal), watch imperiled incumbent Democrats squirm, and then potentially face off against even more liberal and Big Labor–beholden opponents in the general election. Some labor officials have figured this out, and moan: “It does not take a pundit to recognize that November is going to be ugly for Democrats and eating our own in primaries makes no sense.”

So in the meantime, organized labor scoops up the handouts. For example, unions have prevailed upon the administration to roll back Bush-era regulations that expanded the financial-disclosure statements required of labor unions and their leaders. So much for transparency. But Big Labor is smart to get what they can now. After November, it’s likely to have far fewer sympathetic lawmakers.

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A Good Deal If. . .

Last night the Senate Republicans agreed to release holds on a number of Obama nominees: “The 27 confirmations mean no recess appointments will be needed during this break, top administration officials said. Recess appointments, which a president can make when Congress is not in session, are temporary and generally last to the end of the year.” Those confirmed are reportedly to be all noncontroversial, and do not include Dawn Johnsen (the radical lawyer proposed for the key role as the head of the Justice Department’s Office of Legal Counsel) or Harold Craig Becker (the National Labor Relations Board nominee who failed to survive a filibuster).

If this means that Obama will not exercise his recess appointment power to install Johnsen, Becker, and others, then this is a very good deal for conservatives. Moreover, it highlights just how unwise was Sen. Richard Shelby’s massive and indiscriminate hold on dozens and dozens of nominees. The proper role of the minority is not to obstruct willy-nilly but rather to exercise individual judgment in determining the qualifications, ethics, and potential biases of nominees. (Indeed, this is the obligation of the entire Senate, if those in the president’s party would refrain from elevating partisan loyalty above their constitutional obligation to provide advice and consent on presidential nominees.)

The arrival of Sen. Scott Brown has certainly had its impact. ObamaCare is grinding to a halt. If the president’s more extreme nominees can be shunted aside while permitting other, generally deserving nominees to assume their duties, then Republicans can rightly claim some credit. And more important, the country will be the better for it.

Last night the Senate Republicans agreed to release holds on a number of Obama nominees: “The 27 confirmations mean no recess appointments will be needed during this break, top administration officials said. Recess appointments, which a president can make when Congress is not in session, are temporary and generally last to the end of the year.” Those confirmed are reportedly to be all noncontroversial, and do not include Dawn Johnsen (the radical lawyer proposed for the key role as the head of the Justice Department’s Office of Legal Counsel) or Harold Craig Becker (the National Labor Relations Board nominee who failed to survive a filibuster).

If this means that Obama will not exercise his recess appointment power to install Johnsen, Becker, and others, then this is a very good deal for conservatives. Moreover, it highlights just how unwise was Sen. Richard Shelby’s massive and indiscriminate hold on dozens and dozens of nominees. The proper role of the minority is not to obstruct willy-nilly but rather to exercise individual judgment in determining the qualifications, ethics, and potential biases of nominees. (Indeed, this is the obligation of the entire Senate, if those in the president’s party would refrain from elevating partisan loyalty above their constitutional obligation to provide advice and consent on presidential nominees.)

The arrival of Sen. Scott Brown has certainly had its impact. ObamaCare is grinding to a halt. If the president’s more extreme nominees can be shunted aside while permitting other, generally deserving nominees to assume their duties, then Republicans can rightly claim some credit. And more important, the country will be the better for it.

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Bayh Gets Caught

Dan Coats in an interview on Fred Thompson’s radio show explained his argument to the voters as to why Indiana Sen. Evan Bayh should not be re-elected:

“He talked a good game back at home, but when push came to shove, he was there with the liberals, there with Obama every time,” Coats said. On health care, Bayh was “catering to the liberals that he needed to cater to and he wasn’t listening to people in Indiana.”

Coats has a good deal of material to work with. Bayh voted for the stimulus, the Obama budget, and ObamaCare. He’s voted to confirm every nominee, from Sonia Sotomayor to the legal extremist Dawn Johnsen (for head of the Office of Legal Counsel) to Craig Becker for the National Labor Relations Board. He was a previous sponsor of card-check legislation, although he managed to stay noncommittal last year. In sum, Bayh was unwilling to oppose the liberal troika of Reid-Pelosi-Obama on a single meaningful domestic-policy item.

It is an argument that is likely to be repeated in states like Arkansas, Nevada, and Colorado, where challengers will make the case that the Democratic incumbent has facilitated the policies that voters back home oppose by large numbers. (In Colorado, for example, Michael Bennet is getting slammed by his opponent for his vote to confirm Becker: “Former Lt. Gov. Jane Norton, the Republican front-runner, said that while other Democrats were willing to buck President Obama’s choice, Bennet’s vote demonstrates he would provide ‘a rubber stamp’ for legislation commonly referred to as ‘card check.’”)

Recall that in Virginia, Bob McDonnell, running against a Democrat who had never cast a single vote in Congress in favor of an Obama agenda item, was able to win by a huge margin by making the case that Washington had strayed too far to the Left and that cap-and-trade, ObamaCare, card check, and takes hikes would be disastrous for his state’s economy. Scott Brown was able to make a similar argument against an opponent who similarly was not burdened by a congressional voting record in favor of the Obama agenda.

How much more effective will that argument be against Democratic incumbents like Bayh who are burdened not only by the “D” next to their name but also a voting record that fits the Republicans’ narrative? Incumbents like Bayh have a choice: start voting against the liberal agenda or hope voters lose their antipathy to the Reid-Pelosi-Obama agenda. The latter sounds like wishful thinking; the former will require a quick about-face. You can see why the Bayh seat and those of many other Democrats are now in play.

Dan Coats in an interview on Fred Thompson’s radio show explained his argument to the voters as to why Indiana Sen. Evan Bayh should not be re-elected:

“He talked a good game back at home, but when push came to shove, he was there with the liberals, there with Obama every time,” Coats said. On health care, Bayh was “catering to the liberals that he needed to cater to and he wasn’t listening to people in Indiana.”

Coats has a good deal of material to work with. Bayh voted for the stimulus, the Obama budget, and ObamaCare. He’s voted to confirm every nominee, from Sonia Sotomayor to the legal extremist Dawn Johnsen (for head of the Office of Legal Counsel) to Craig Becker for the National Labor Relations Board. He was a previous sponsor of card-check legislation, although he managed to stay noncommittal last year. In sum, Bayh was unwilling to oppose the liberal troika of Reid-Pelosi-Obama on a single meaningful domestic-policy item.

It is an argument that is likely to be repeated in states like Arkansas, Nevada, and Colorado, where challengers will make the case that the Democratic incumbent has facilitated the policies that voters back home oppose by large numbers. (In Colorado, for example, Michael Bennet is getting slammed by his opponent for his vote to confirm Becker: “Former Lt. Gov. Jane Norton, the Republican front-runner, said that while other Democrats were willing to buck President Obama’s choice, Bennet’s vote demonstrates he would provide ‘a rubber stamp’ for legislation commonly referred to as ‘card check.’”)

Recall that in Virginia, Bob McDonnell, running against a Democrat who had never cast a single vote in Congress in favor of an Obama agenda item, was able to win by a huge margin by making the case that Washington had strayed too far to the Left and that cap-and-trade, ObamaCare, card check, and takes hikes would be disastrous for his state’s economy. Scott Brown was able to make a similar argument against an opponent who similarly was not burdened by a congressional voting record in favor of the Obama agenda.

How much more effective will that argument be against Democratic incumbents like Bayh who are burdened not only by the “D” next to their name but also a voting record that fits the Republicans’ narrative? Incumbents like Bayh have a choice: start voting against the liberal agenda or hope voters lose their antipathy to the Reid-Pelosi-Obama agenda. The latter sounds like wishful thinking; the former will require a quick about-face. You can see why the Bayh seat and those of many other Democrats are now in play.

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Re: Becker Defeated

Regarding the defeat of Harold Craig Becker’s nomination, the Wall Street Journal‘s editors observe:

Democrats Ben Nelson and Blanche Lincoln joined with Republicans to block cloture on a closely watched vote on the appointment of a lawyer for Andy Stern’s Service Employees International Union to a seat on the National Labor Relations Board. … The message from yesterday’s cloture motion is sobering for the White House and its union allies. Support for their antigrowth agenda, from universal health care to easier unionization rules, is collapsing on the Hill almost as quickly as in the country at large.

True, but it is equally true that a number of Democrats in competitive races went to the mat for that anti-growth agenda on Becker, just as they have on a series of items on Obama’s far-Left agenda. Voting for cloture and for Becker were Michael Bennet of Colorado, Evan Bayh of Indiana, and of course, Harry Reid of Nevada. Voters back home may wonder why it is that these self-styled moderates cast votes for Big Labor’s favorite lawyer, who thinks, surprisingly enough, just like the Big Labor bosses. (“Among the nominees for the three open seats on the five-member board, his views stood out for their radicalism. In a law review article, Mr. Becker said the NLRB could rewrite union-election rules to favor labor by fiat—for example, by removing the requirement for a secret ballot.”)

But now the ball is in Obama’s court. Does he install Becker, thereby exposing the Big Labor toadyism of his administration and highlighting the faux centrism of Bennet, Bayh, Reid, and others? Or does he take this as a sign that there is a limited appetite for his extreme vision and equally extreme appointees? There is always reason to hope that, finally, Obama will notice the blinking warning lights (Go back! Even your own party can’t defend you!). But if he didn’t take the Scott Brown win to heart, he’s probably not all that impressed that his NLRB nominee didn’t get through.

Regarding the defeat of Harold Craig Becker’s nomination, the Wall Street Journal‘s editors observe:

Democrats Ben Nelson and Blanche Lincoln joined with Republicans to block cloture on a closely watched vote on the appointment of a lawyer for Andy Stern’s Service Employees International Union to a seat on the National Labor Relations Board. … The message from yesterday’s cloture motion is sobering for the White House and its union allies. Support for their antigrowth agenda, from universal health care to easier unionization rules, is collapsing on the Hill almost as quickly as in the country at large.

True, but it is equally true that a number of Democrats in competitive races went to the mat for that anti-growth agenda on Becker, just as they have on a series of items on Obama’s far-Left agenda. Voting for cloture and for Becker were Michael Bennet of Colorado, Evan Bayh of Indiana, and of course, Harry Reid of Nevada. Voters back home may wonder why it is that these self-styled moderates cast votes for Big Labor’s favorite lawyer, who thinks, surprisingly enough, just like the Big Labor bosses. (“Among the nominees for the three open seats on the five-member board, his views stood out for their radicalism. In a law review article, Mr. Becker said the NLRB could rewrite union-election rules to favor labor by fiat—for example, by removing the requirement for a secret ballot.”)

But now the ball is in Obama’s court. Does he install Becker, thereby exposing the Big Labor toadyism of his administration and highlighting the faux centrism of Bennet, Bayh, Reid, and others? Or does he take this as a sign that there is a limited appetite for his extreme vision and equally extreme appointees? There is always reason to hope that, finally, Obama will notice the blinking warning lights (Go back! Even your own party can’t defend you!). But if he didn’t take the Scott Brown win to heart, he’s probably not all that impressed that his NLRB nominee didn’t get through.

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Becker Defeated

In the end, it wasn’t even close:

President Obama’s nominee for the National Labor Relations Board fell short of the 60 votes needed to break a Republican-led filibuster. The Senate vote was 52 yes and 33 no. Two Democrats, Blanche Lincoln and Ben Nelson voted against Craig Becker.

With a showing that shabby and with multiple Democrats not only willing to oppose but also to filibuster a nominee, it now seems unlikely that Obama will try to slip Becker in by a recess appointment. It also suggests just how out of tune the White House is with its own party. In time we may see just how isolated the Obami are, as Red State Democrats flee from the Obama agenda, afraid for their political lives. This vote is also a telling reminder that for all its millions in campaign donations to the Democrats, Big Labor has gotten precious little since the 2008 election. Its members may want to know why all that dues money was wasted.

In the end, it wasn’t even close:

President Obama’s nominee for the National Labor Relations Board fell short of the 60 votes needed to break a Republican-led filibuster. The Senate vote was 52 yes and 33 no. Two Democrats, Blanche Lincoln and Ben Nelson voted against Craig Becker.

With a showing that shabby and with multiple Democrats not only willing to oppose but also to filibuster a nominee, it now seems unlikely that Obama will try to slip Becker in by a recess appointment. It also suggests just how out of tune the White House is with its own party. In time we may see just how isolated the Obami are, as Red State Democrats flee from the Obama agenda, afraid for their political lives. This vote is also a telling reminder that for all its millions in campaign donations to the Democrats, Big Labor has gotten precious little since the 2008 election. Its members may want to know why all that dues money was wasted.

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Obama Labor Nominee Draws Democratic Opposition

It seems that the nomination of Harold Craig Becker to the National Labor Relations Board may finally be kaput. Republicans are uniformly opposed to the nominee, who is the SEIU and AFL-CIO’s lawyer and whose writings have offered the view that labor election laws can be rewritten by the NLRB without congressional authorization. Now Sen. Ben Nelson, struggling to get back into the good graces of conservatives and business groups, is coming out against Becker:

Sen. Ben Nelson (D-Neb.) announced Monday evening that he will support a Republican-led filibuster over President Barack Obama’s nominee to serve on the National Labor Relations Board. The move is likely to infuriate labor groups who have fought hard for Craig Becker’s nomination to serve on the five-member NLRB — and will likely give Republicans enough support to sustain a filibuster Tuesday.

A report by Congressional Quarterly (subscription required) states that other Democrats may oppose Becker, although none has done so publicly. If Becker can’t get through the Senate with 60 votes to break a filibuster, there is the potential for a recess appointment. It wouldn’t be the first recess appointment in recent memory, but it does speak volumes about how extreme Becker is (two other NLRB nominees face no organized opposition) and how Obama has failed to garner even a modicum of bipartisan support, whether in matters large (health care) or relatively small (a labor board nominee).

It seems that the nomination of Harold Craig Becker to the National Labor Relations Board may finally be kaput. Republicans are uniformly opposed to the nominee, who is the SEIU and AFL-CIO’s lawyer and whose writings have offered the view that labor election laws can be rewritten by the NLRB without congressional authorization. Now Sen. Ben Nelson, struggling to get back into the good graces of conservatives and business groups, is coming out against Becker:

Sen. Ben Nelson (D-Neb.) announced Monday evening that he will support a Republican-led filibuster over President Barack Obama’s nominee to serve on the National Labor Relations Board. The move is likely to infuriate labor groups who have fought hard for Craig Becker’s nomination to serve on the five-member NLRB — and will likely give Republicans enough support to sustain a filibuster Tuesday.

A report by Congressional Quarterly (subscription required) states that other Democrats may oppose Becker, although none has done so publicly. If Becker can’t get through the Senate with 60 votes to break a filibuster, there is the potential for a recess appointment. It wouldn’t be the first recess appointment in recent memory, but it does speak volumes about how extreme Becker is (two other NLRB nominees face no organized opposition) and how Obama has failed to garner even a modicum of bipartisan support, whether in matters large (health care) or relatively small (a labor board nominee).

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Re: Re: Laboring for Obama

As I suspected, the nomination of Harold Craig Becker to the National Labor Relations Board seems to be in peril. Republican Sens. Mike Enzi and Lisa Murkowski, who previously supported his nomination last fall, voted against Becker in a straight party-line vote today in committee. Enzi in a statement explained his objections:

Mr. Becker’s answers to written questions that senators submitted previously on these views are vague, and sometimes non-responsive due to his attorney relationship with both SEIU and the AFL-CIO . . This has left open the real possibility that Mr. Becker would reinterpret the National Labor Relations Act to limit the ability of employers to participate in the process, or tilt the playing field unfairly in the direction of labor union leaders.

And today, Scott Brown joined the Senate as the 41st Republican vote, enough for a filibuster of Becker’s nomination, should it come to that. The real question for voters remains, or should remain, why every single Democrat would rubber stamp a nominee who is obviously so biased and so committed to one side in labor disputes. The NLRB is supposed to be a neutral body that interprets federal labor law. Who really thinks the associate general counsel to both the Service Employees International Union and the AFL-CIO is going to give employers a fair shake? Can any senator buy Becker’s testimony that he no longer believes his own writings advocating that the Board can radically change labor law without Congressional authorization? Let’s be honest: this was a big giveaway to Big Labor that could only have been delivered if 60 Democrats were willing to hold their noses and vote to confirm him.

Well, Brown’s appearance will have a dramatic effect on the Senate. ObamaCare is already comatose. Perhaps without the luxury of a filibuster-proof majority, the quality of the Obama nominees will also improve.

As I suspected, the nomination of Harold Craig Becker to the National Labor Relations Board seems to be in peril. Republican Sens. Mike Enzi and Lisa Murkowski, who previously supported his nomination last fall, voted against Becker in a straight party-line vote today in committee. Enzi in a statement explained his objections:

Mr. Becker’s answers to written questions that senators submitted previously on these views are vague, and sometimes non-responsive due to his attorney relationship with both SEIU and the AFL-CIO . . This has left open the real possibility that Mr. Becker would reinterpret the National Labor Relations Act to limit the ability of employers to participate in the process, or tilt the playing field unfairly in the direction of labor union leaders.

And today, Scott Brown joined the Senate as the 41st Republican vote, enough for a filibuster of Becker’s nomination, should it come to that. The real question for voters remains, or should remain, why every single Democrat would rubber stamp a nominee who is obviously so biased and so committed to one side in labor disputes. The NLRB is supposed to be a neutral body that interprets federal labor law. Who really thinks the associate general counsel to both the Service Employees International Union and the AFL-CIO is going to give employers a fair shake? Can any senator buy Becker’s testimony that he no longer believes his own writings advocating that the Board can radically change labor law without Congressional authorization? Let’s be honest: this was a big giveaway to Big Labor that could only have been delivered if 60 Democrats were willing to hold their noses and vote to confirm him.

Well, Brown’s appearance will have a dramatic effect on the Senate. ObamaCare is already comatose. Perhaps without the luxury of a filibuster-proof majority, the quality of the Obama nominees will also improve.

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Flotsam and Jetsam

Katie Couric will interview Obama live from the Super Bowl because we haven’t seen enough of him, and what he really needs is to communicate more with the American people. Well, that’s apparently what they think inside the White House cocoon. More cowbell!

Mickey Kaus thinks Obama’s excuse mongering about the health-care bill (“we were just about to clean those up [objections to the bill], and then Massachusetts’ election happened”) is a “stunning admission of incompetence.” So maybe the president does have a communications problem, after all. If you can’t read a calendar or follow election polls, you should keep it to yourself.

The Hill: “The House is unlikely to extend President George W. Bush’s cuts for taxpayers earning more than $250,000, Majority Leader Steny Hoyer (D-Md.) said Wednesday. … Allowing the tax breaks to expire at the end of the year will spark election-year criticism that Democrats are raising taxes. Congress approved the tax cuts in 2001 and 2003. Democrats are worried about losing seats in November’s midterm election, but Hoyer discounted the idea of his party losing seats solely because of a tax increase.” Well, he’s right — there is also all the red ink, ObamaCare, cap-and-trade, and the sleazy backroom dealings.

Foaming at the mouth and comparing Republicans to Hitler is not such a winning TV-ratings combination anymore. Andrew Malcolm tells us: “Olbermann’s showboat is sinking. Listing in you-know-which direction. It’s as if he thinks talking LOUDER will keep his low cell battery from dying. Worst, Olbermann’s network president, Phil Griffin, is publicly praising him, always an ominous sign in television.”

Dana Perino reminds us: “The context in which the Bush administration was operating is important. President Bush authorized detaining terrorists as enemy combatants in November 2001, two months or so after 9/11. The Shoe Bomber was arrested in December 2001, only a month after President Bush’s order. At that point, there was no system in place to handle enemy combatants. … Perhaps the more interesting context is how months after the administration announced a High Value Detainee Interrogation Group they could not meet after Abdulmutallab’s attempt because … it hadn’t even been set up yet.”

Karl Rove points out: “The budget is filled with gimmicks. For example, the president is calling for a domestic, nonsecurity, discretionary spending freeze. But that freeze doesn’t apply to a $282 billion proposed second stimulus package. It also doesn’t apply to the $519 billion that has yet to be spent from the first stimulus bill. The federal civilian work force is also not frozen. It is projected to rise to 1.43 million employees in 2010, up from 1.2 million in 2008.” And it seems that the mainstream media and the public are increasingly on to this sort of stunt. That may account for all the Democratic retirements: “Democrats are in the midst of the painful realization: Mr. Obama’s words cannot save them from the power of bad ideas.”

But Obama is telling Senate Democrats that “I think the natural political instinct is to tread lightly, keep your head down and to play it safe.” Translation: go ahead, pass ObamaCare, and join Martha Coakley, Jon Corzine, Creigh Deeds, Chris Dodd, and Byron Dorgan. The president tells them “the answer is not to do nothing.” I think “nothing” is looking like the best of bad options for the beleaguered Senate Democrats, who are now contemplating a serious reduction in their ranks.

The gamesmanship finally ends: “Massachusetts Senator-elect Scott Brown will be sworn in Thursday, according to Jim Manley, the spokesman for Senate Majority Leader Harry Reid, D-Nev. Brown’s lawyer today asked that the election results in his state be immediately certified so that he can be sworn in right away. Initially Brown was scheduled to take office next week, but has since decided he wants to vote on upcoming nominations for solicitor general, the General Services Administration and the National Labor Relations Board.” That probably means that Harold Craig Becker’s nomination is in trouble.

Katie Couric will interview Obama live from the Super Bowl because we haven’t seen enough of him, and what he really needs is to communicate more with the American people. Well, that’s apparently what they think inside the White House cocoon. More cowbell!

Mickey Kaus thinks Obama’s excuse mongering about the health-care bill (“we were just about to clean those up [objections to the bill], and then Massachusetts’ election happened”) is a “stunning admission of incompetence.” So maybe the president does have a communications problem, after all. If you can’t read a calendar or follow election polls, you should keep it to yourself.

The Hill: “The House is unlikely to extend President George W. Bush’s cuts for taxpayers earning more than $250,000, Majority Leader Steny Hoyer (D-Md.) said Wednesday. … Allowing the tax breaks to expire at the end of the year will spark election-year criticism that Democrats are raising taxes. Congress approved the tax cuts in 2001 and 2003. Democrats are worried about losing seats in November’s midterm election, but Hoyer discounted the idea of his party losing seats solely because of a tax increase.” Well, he’s right — there is also all the red ink, ObamaCare, cap-and-trade, and the sleazy backroom dealings.

Foaming at the mouth and comparing Republicans to Hitler is not such a winning TV-ratings combination anymore. Andrew Malcolm tells us: “Olbermann’s showboat is sinking. Listing in you-know-which direction. It’s as if he thinks talking LOUDER will keep his low cell battery from dying. Worst, Olbermann’s network president, Phil Griffin, is publicly praising him, always an ominous sign in television.”

Dana Perino reminds us: “The context in which the Bush administration was operating is important. President Bush authorized detaining terrorists as enemy combatants in November 2001, two months or so after 9/11. The Shoe Bomber was arrested in December 2001, only a month after President Bush’s order. At that point, there was no system in place to handle enemy combatants. … Perhaps the more interesting context is how months after the administration announced a High Value Detainee Interrogation Group they could not meet after Abdulmutallab’s attempt because … it hadn’t even been set up yet.”

Karl Rove points out: “The budget is filled with gimmicks. For example, the president is calling for a domestic, nonsecurity, discretionary spending freeze. But that freeze doesn’t apply to a $282 billion proposed second stimulus package. It also doesn’t apply to the $519 billion that has yet to be spent from the first stimulus bill. The federal civilian work force is also not frozen. It is projected to rise to 1.43 million employees in 2010, up from 1.2 million in 2008.” And it seems that the mainstream media and the public are increasingly on to this sort of stunt. That may account for all the Democratic retirements: “Democrats are in the midst of the painful realization: Mr. Obama’s words cannot save them from the power of bad ideas.”

But Obama is telling Senate Democrats that “I think the natural political instinct is to tread lightly, keep your head down and to play it safe.” Translation: go ahead, pass ObamaCare, and join Martha Coakley, Jon Corzine, Creigh Deeds, Chris Dodd, and Byron Dorgan. The president tells them “the answer is not to do nothing.” I think “nothing” is looking like the best of bad options for the beleaguered Senate Democrats, who are now contemplating a serious reduction in their ranks.

The gamesmanship finally ends: “Massachusetts Senator-elect Scott Brown will be sworn in Thursday, according to Jim Manley, the spokesman for Senate Majority Leader Harry Reid, D-Nev. Brown’s lawyer today asked that the election results in his state be immediately certified so that he can be sworn in right away. Initially Brown was scheduled to take office next week, but has since decided he wants to vote on upcoming nominations for solicitor general, the General Services Administration and the National Labor Relations Board.” That probably means that Harold Craig Becker’s nomination is in trouble.

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Re: Laboring for Obama

Obama’s nominee to the National Labor Relations Board, Harold Craig Becker, came under fire in his senate confirmation hearing yesterday. As controversial nominee are wont to do, he tried to distance himself from his past writings:

Sen. Johnny Isakson (R., Ga.) expressed concern that Becker’s writings “have indicated a belief that the NLRB has the power to make some of the dramatic changes in the card-check bill.” The so-called card-check legislation, supported by Obama and Democrats in Congress, would allow unions to bypass secret-ballot elections and instead organize in workplaces by collecting signed cards from workers.

Becker on Tuesday suggested that he now doesn’t believe the board could take such a step, distancing himself from the writings.

“The law is clear that the decision…(of) an alternative route to certification rests with Congress and not the board,” Becker said, adding that the writings were “intended to be provocative and to ask fundamental questions in order for scholars and others to re-evaluate.”

Now, he’s all about implementing the will of Congress, you see. (“‘If confirmed, my decisions, unlike the views of a scholar, will have practical, concrete and important consequences,’ he told members of the Senate Health, Education, Labor and Pension Committee. ‘I will have a duty to implement the intent of Congress.’”) That, of course, marks a stark reversal from his 1993 law review article, in which he claimed just the opposite, namely that election rules should be redrafted to favor unions and that the NLRB could do this all on its own without Congressional authorization.

Then the issue of his association with the SEIU surfaced:

Becker saw tough questioning from Sen. John McCain (R. Ariz.) over whether he would recuse himself from cases before the NLRB involving the Service Employees International Union, where Becker most recently worked. Becker said he would recuse himself from cases involving the Service Employees International Union for two years but stopped short of saying what he would do so in a case mentioned by McCain involving a local chapter of the union.

“If any other matter arises in which any questions can be raised or might be raised about my impartiality, I will take that very seriously,” Becker said.

McCain told Becker “that’s not good enough.”

The real question is whether Harry Reid will try to jam this nomination through before Scott Brown is seated next week and Republicans can mount a successful filibuster. If Reid decides to force the vote with Sen. Paul Kirk still casting votes nearly a month after the Massachusetts election, it will be one more example of the excesses of one-party rule – in which a president beholden to political patrons can put up a nominee with obvious bias and ethical problems, knowing that his dutiful senate allies will rubber stamp his choice. And what of those Red State senators who swear to their constituents that they exercise independent judgment? They keep assuring their constituents that they don’t simply do the bidding of their ultra-liberal leadership. Oh well, another time perhaps. Now, one suspects it is time to ram through a favor for Big Labor.

Obama’s nominee to the National Labor Relations Board, Harold Craig Becker, came under fire in his senate confirmation hearing yesterday. As controversial nominee are wont to do, he tried to distance himself from his past writings:

Sen. Johnny Isakson (R., Ga.) expressed concern that Becker’s writings “have indicated a belief that the NLRB has the power to make some of the dramatic changes in the card-check bill.” The so-called card-check legislation, supported by Obama and Democrats in Congress, would allow unions to bypass secret-ballot elections and instead organize in workplaces by collecting signed cards from workers.

Becker on Tuesday suggested that he now doesn’t believe the board could take such a step, distancing himself from the writings.

“The law is clear that the decision…(of) an alternative route to certification rests with Congress and not the board,” Becker said, adding that the writings were “intended to be provocative and to ask fundamental questions in order for scholars and others to re-evaluate.”

Now, he’s all about implementing the will of Congress, you see. (“‘If confirmed, my decisions, unlike the views of a scholar, will have practical, concrete and important consequences,’ he told members of the Senate Health, Education, Labor and Pension Committee. ‘I will have a duty to implement the intent of Congress.’”) That, of course, marks a stark reversal from his 1993 law review article, in which he claimed just the opposite, namely that election rules should be redrafted to favor unions and that the NLRB could do this all on its own without Congressional authorization.

Then the issue of his association with the SEIU surfaced:

Becker saw tough questioning from Sen. John McCain (R. Ariz.) over whether he would recuse himself from cases before the NLRB involving the Service Employees International Union, where Becker most recently worked. Becker said he would recuse himself from cases involving the Service Employees International Union for two years but stopped short of saying what he would do so in a case mentioned by McCain involving a local chapter of the union.

“If any other matter arises in which any questions can be raised or might be raised about my impartiality, I will take that very seriously,” Becker said.

McCain told Becker “that’s not good enough.”

The real question is whether Harry Reid will try to jam this nomination through before Scott Brown is seated next week and Republicans can mount a successful filibuster. If Reid decides to force the vote with Sen. Paul Kirk still casting votes nearly a month after the Massachusetts election, it will be one more example of the excesses of one-party rule – in which a president beholden to political patrons can put up a nominee with obvious bias and ethical problems, knowing that his dutiful senate allies will rubber stamp his choice. And what of those Red State senators who swear to their constituents that they exercise independent judgment? They keep assuring their constituents that they don’t simply do the bidding of their ultra-liberal leadership. Oh well, another time perhaps. Now, one suspects it is time to ram through a favor for Big Labor.

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Laboring for Obama

As others have aptly detailed, Patricia Smith, Obama’s nominee for solicitor of labor, has a problem with telling the truth. In an extraordinary detailed account, Republican senators have documented her repeated misstatements concerning a New York wage and hour program, the intention to expand the program, the involvement of organized labor in devising the program, and the intention of Big Labor to use the program to facilitate organizing efforts. She was passed out of committee on a straight party-line vote and last night, with Sen. Paul Kirk still casting votes, the Senate invoked cloture, 60-32. So this seems to be one gift to Big Labor on which the Democrats can still deliver. (Yes, there is something pernicious about keeping Kirk there to vote in favors for Obama’s Big Labor patrons.)

But it is not the only gift to Big Labor coming from the Democrats. There is also the nomination of Harold Craig Becker to the National Labor Relations Board. His hearing is set for today. Who is Becker? Here’s a handy summary:

Mr. Becker is associate general counsel at the Service Employees International Union (SEIU), which is most recently in the news for its close ties to Acorn, the disgraced housing shakedown operation. President Obama nominated Mr. Becker in April to the five-member NLRB, which has the critical job of supervising union elections, investigating labor practices, and interpreting the National Labor Relations Act. In a 1993 Minnesota Law Review article, written when he was a UCLA professor, Mr. Becker argued for rewriting current union-election rules in favor of labor. And he suggested the NLRB could do this by regulatory fiat, without a vote of Congress.

In that law-review article, Becker argues that employers should be not be allowed to attend NLRB hearings about elections and shouldn’t be permitted to challenge election results even if unions engage in misconduct. Under his regime, elections would not be held at workplaces and could be conducted by mail (a recipe for union intimidation and fraud). In Becker’s legal world, employers would not be permitted to even assign observers at elections to detect fraud.

And Becker too has a candor problem, previously refusing to answer questions as to whether he drafted pro-Labor executive orders for the Obama administration while still on the SEIU’s payroll. Aside from his obvious fidelity to Big Labor, his apparent willingness to implement a ridiculously biased set of rules through executive fiat and his reluctance to come clean on his work for the Obami, there are his Chicago connections:

One of the many accusations leveled against former Illinois Governor Rod Blagojevich is that he accepted money from the SEIU in return for taking actions giving collective bargaining rights to Illinois home health-care workers. While Mr. Becker denies any knowledge of, or role in, contributions to the former Governor, he does admit that he provided “advice and counsel to SEIU relating to proposed executive orders and proposed legislation giving homecare workers a right to organize and engage in collective bargaining under state law.”

Mr. Becker says he “worked with and provided advice” to SEIU Local 880 in Chicago, a beneficiary of the newly unionized health workers, and one of two SEIU locals currently in the national spotlight for its deep ties with Acorn. Mr. Becker denies working for Acorn or its affiliates, but as recently as April Acorn co-founder Wade Rathke praised Mr. Becker by name, noting “For my money, Craig’s signal contribution has been his work in crafting and executing the legal strategies and protections which have allowed the effective organization of informal workers, and by this I mean home health-care workers.”

Unlike Smith, Becker may not get a vote before Scott Brown is sworn in.

These two nominees tell us much about the Democrats and their dependence on Big Labor. When Obama talks about the unseemly influence of “special interests,” we should look no further than these two nominees, who—one supposes—are small consolation prizes to Big Labor, which has gotten precious little else from this adminstration after giving millions to elect Obama and large Democratic majorities in Congress. It is also yet another argument in favor of divided government. Without the comfort of huge Democratic majorities to rubber stamp its appointments, the White House would presumably think twice before sending up such defective nominees.

As others have aptly detailed, Patricia Smith, Obama’s nominee for solicitor of labor, has a problem with telling the truth. In an extraordinary detailed account, Republican senators have documented her repeated misstatements concerning a New York wage and hour program, the intention to expand the program, the involvement of organized labor in devising the program, and the intention of Big Labor to use the program to facilitate organizing efforts. She was passed out of committee on a straight party-line vote and last night, with Sen. Paul Kirk still casting votes, the Senate invoked cloture, 60-32. So this seems to be one gift to Big Labor on which the Democrats can still deliver. (Yes, there is something pernicious about keeping Kirk there to vote in favors for Obama’s Big Labor patrons.)

But it is not the only gift to Big Labor coming from the Democrats. There is also the nomination of Harold Craig Becker to the National Labor Relations Board. His hearing is set for today. Who is Becker? Here’s a handy summary:

Mr. Becker is associate general counsel at the Service Employees International Union (SEIU), which is most recently in the news for its close ties to Acorn, the disgraced housing shakedown operation. President Obama nominated Mr. Becker in April to the five-member NLRB, which has the critical job of supervising union elections, investigating labor practices, and interpreting the National Labor Relations Act. In a 1993 Minnesota Law Review article, written when he was a UCLA professor, Mr. Becker argued for rewriting current union-election rules in favor of labor. And he suggested the NLRB could do this by regulatory fiat, without a vote of Congress.

In that law-review article, Becker argues that employers should be not be allowed to attend NLRB hearings about elections and shouldn’t be permitted to challenge election results even if unions engage in misconduct. Under his regime, elections would not be held at workplaces and could be conducted by mail (a recipe for union intimidation and fraud). In Becker’s legal world, employers would not be permitted to even assign observers at elections to detect fraud.

And Becker too has a candor problem, previously refusing to answer questions as to whether he drafted pro-Labor executive orders for the Obama administration while still on the SEIU’s payroll. Aside from his obvious fidelity to Big Labor, his apparent willingness to implement a ridiculously biased set of rules through executive fiat and his reluctance to come clean on his work for the Obami, there are his Chicago connections:

One of the many accusations leveled against former Illinois Governor Rod Blagojevich is that he accepted money from the SEIU in return for taking actions giving collective bargaining rights to Illinois home health-care workers. While Mr. Becker denies any knowledge of, or role in, contributions to the former Governor, he does admit that he provided “advice and counsel to SEIU relating to proposed executive orders and proposed legislation giving homecare workers a right to organize and engage in collective bargaining under state law.”

Mr. Becker says he “worked with and provided advice” to SEIU Local 880 in Chicago, a beneficiary of the newly unionized health workers, and one of two SEIU locals currently in the national spotlight for its deep ties with Acorn. Mr. Becker denies working for Acorn or its affiliates, but as recently as April Acorn co-founder Wade Rathke praised Mr. Becker by name, noting “For my money, Craig’s signal contribution has been his work in crafting and executing the legal strategies and protections which have allowed the effective organization of informal workers, and by this I mean home health-care workers.”

Unlike Smith, Becker may not get a vote before Scott Brown is sworn in.

These two nominees tell us much about the Democrats and their dependence on Big Labor. When Obama talks about the unseemly influence of “special interests,” we should look no further than these two nominees, who—one supposes—are small consolation prizes to Big Labor, which has gotten precious little else from this adminstration after giving millions to elect Obama and large Democratic majorities in Congress. It is also yet another argument in favor of divided government. Without the comfort of huge Democratic majorities to rubber stamp its appointments, the White House would presumably think twice before sending up such defective nominees.

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