Republican obstructionism update - Why the National Labor Relations Board is missing three out of five members

Here's a nice example of what routine use of the filibuster means (quoting Ezra Klein):

Last night, Craig Becker's nomination to the National Labor Relations Board was approved, with 52 senators voting in favor of Becker and 33 voting against him.

Wait, sorry, I got that wrong. It was rejected with 52 senators voting in favor of Becker and 33 voting against. How? Well, the filibuster, grasshopper.

The reason that 33 votes could defeat 52 in this case is that they weren't voting on Becker's nomination itself, but on a cloture motion to break a filibuster and allow consideration of Becker's nomination. That requires 60 votes, not a majority.

=> Obama is now threatening to use recess appointments to fill some positions where consideration of the nominees has been blocked by Republican obstructionism. In Becker's case, the nomination actually reached the stage of a cloture vote, but the Senate still can't vote on the nomination itself. Meanwhile, three of the five seats on the NLRB remain unfilled, and it is unclear whether it has a legal quorum to operate. So should Obama use a recess appointment to name Becker to the NLRB?

Right after the Republicans had successfully used the filibuster to prevent a vote on Becker's nomination, Senator Orrin Hatch declared that "[t]he Senate spoke with a loud, clear and bipartisan voice" in rejecting Becker. Bear in mind that this "loud, clear and bipartisan voice" involved 33 Senators (including two rogue Democrats) voting against Becker's confirmation versus 55 Senators voting in favor. "I sincerely hope the White House does not circumvent the will of the Senate by appointing him when the Senate is out of session."

Well, you have to admire the guy's chutzpah. As Jonathan Zasloff points out, back in 1991 the appointment of Clarence Thomas to the Supreme Court passed the Senate by a vote of 52-48, which according to normal arithmetic is a good deal closer than 55-33. Does that mean that Thomas's presence on the Court is contrary to "the will of the senate"?

=> Coming back to reality ... Ezra Klein reminds of us some relevant history from not that long ago:

By this point in his term, George W. Bush had recess appointed 10 nominees, including one to the National Labor Relations Board in August of his first year. We're in February of Obama's second, he has more than twice as many nominees held up as Bush did, and he's only threatening his first recess appointment.

[....] In his first year in office, [Bush] was using recess appointments and running major legislation through the reconciliation process. That normalized those moves for the rest of his administration. Using those tools wasn't a story. The Obama White House, by contrast, is holding those moves in reserve, which has allowed Republicans to paint them as extraordinary measures. But they're not extraordinary measures. They're basic elements of governance in an era of polarization and procedural obstructionism, and the White House should treat them that way.

Amen. In the long run, on the other hand, there ought to be better ways to run a serious government.

--Jeff Weintraub

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Washington Post (On-Line)
February 10, 2010
What Obama could learn from Bush
Ezra Klein
Last night, Craig Becker's nomination to the National Labor Relations Board was approved, with 52 senators voting in favor of Becker and 33 voting against him.

Wait, sorry, I got that wrong. It was rejected with 52 senators voting in favor of Becker and 33 voting against. How? Well, the filibuster, grasshopper. This led some lions of the Senate to take aim at the practice. "I think [the filibuster] will either fall of its own weight -- it should fall of its own weight -- or it will fall after some massive conflict on the floor," Carl Levin told the Huffington Post. "The reason the filibuster rule has been supported all these years is people have used it responsibly," Pat Leahy said. "This is unprecedented."

But the big news is that Barack Obama is finally threatening some recess appointments. Unlike on legislation, the president is not powerless before obstruction of his nominees. He, like most every president before him, can invoke his constitutional right to appoint during a congressional recess. By this point in his term, George W. Bush had recess appointed 10 nominees, including one to the National Labor Relations Board in August of his first year. We're in February of Obama's second, he has more than twice as many nominees held up as Bush did, and he's only threatening his first recess appointment.

Bush had this right. In his first year in office, he was using recess appointments and running major legislation through the reconciliation process. That normalized those moves for the rest of his administration. Using those tools wasn't a story. The Obama White House, by contrast, is holding those moves in reserve, which has allowed Republicans to paint them as extraordinary measures. But they're not extraordinary measures. They're basic elements of governance in an era of polarization and procedural obstructionism, and the White House should treat them that way.