Commentary Magazine


Topic: solicitor

Kagan’s Recusals

Yesterday, I raised the issue of Elena Kagan’s recusal in a case that might try to reverse or modify Citizens United. It seems the White House has already thought this through:

White House press secretary Robert Gibbs said Obama took the issue into consideration when he looked at Kagan for the nomination. “The president had to make a decision similar to past presidents that have tapped solicitor generals to serve on the high court,” Gibbs said. “Next year, I think we anticipate recusals in about a dozen cases, and then maybe less than half of that in the year after that.”

Really — how did they count? What standard are they using? Kagan should be very clear about what sorts of cases and what issues she believes she will be recused from. This is critical not only in determining her ethical posture but also in figuring out whether Democrats will be “down a vote” for some period of time. Is she going to opine on the constitutionality of ObamaCare? On Guantanomo cases? On this, the Senate should insist on clear and definitive answers. After all, it goes directly to her ability to perform the job for which she has been nominated.

Yesterday, I raised the issue of Elena Kagan’s recusal in a case that might try to reverse or modify Citizens United. It seems the White House has already thought this through:

White House press secretary Robert Gibbs said Obama took the issue into consideration when he looked at Kagan for the nomination. “The president had to make a decision similar to past presidents that have tapped solicitor generals to serve on the high court,” Gibbs said. “Next year, I think we anticipate recusals in about a dozen cases, and then maybe less than half of that in the year after that.”

Really — how did they count? What standard are they using? Kagan should be very clear about what sorts of cases and what issues she believes she will be recused from. This is critical not only in determining her ethical posture but also in figuring out whether Democrats will be “down a vote” for some period of time. Is she going to opine on the constitutionality of ObamaCare? On Guantanomo cases? On this, the Senate should insist on clear and definitive answers. After all, it goes directly to her ability to perform the job for which she has been nominated.

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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.

Read Less