Surprise! Obama nominates former recess appointee to powerful NLRB post

This is a few days old, but it’s worth highlighting — especially since Democrats are making noises about proceeding with filibuster changes despite the agreement made last month with Republicans.  The two sides cut that deal in the Senate to keep Barack Obama from reappointing his recess appointees to the National Labor Relations Board to rescue their anti-business rulings over the past year from courts that have ruled the appointments unconstitutional and mooted their work since January 2012.  In exchange, Republicans allowed floor votes on Thomas Perez’ confirmation as Secretary of Labor and pledged to approve replacement NLRB commissioner appointments in trade for keeping Richard Griffin and Sharon Block out of the bureau.

Guess who’s coming back — and perhaps more powerful than before?

President Barack Obama nominated former union lawyer Richard Griffin Jr. to be general counsel of the National Labor Relations Board, just as Mr. Griffin is being displaced as a board member because of a dispute over how he was appointed.

The move could spark a backlash from some Republicans and some in the business community, who have said Mr. Griffin defiantly remained on the board after courts deemed his appointment unconstitutional.

Democratic and Republican senior congressional aides are at odds over whether his Senate confirmation will be smooth. A senior Democratic leadership aide said Republicans had pledged not to hold up the confirmation—as part of a bipartisan deal last month to avoid a showdown over filibusters and win confirmation for new labor board picks and five other executive branch nominees. But a senior aide to GOP leadership and a top Republican aide to the Senate labor committee said no such commitment was made.

The general counsel at the NLRB is not just an advisory role to the commission, as a chief counsel role operates in other agencies.  In some ways, Griffin will have more power to act — unilaterally — in this position than he did as a commissioner:

The role of general counsel is a powerful one at the agency, which oversees union elections and referees private-sector management-labor disputes. While the five-member board rules on cases, the general counsel decides when to investigate and prosecute companies charged with unfair labor practices.

Acting general counsel Lafe Solomon has served since June 2010 without Senate confirmation, and is perhaps best known for filing a union-spurred complaint against Boeing Co.that was later dropped.

I’ll skip over the obvious Obi-wan Kenobi references and just point out that the joke is on the GOP here.  The Friday-night dump of this appointment has mainly kept it under the radar (although it had been rumored for a couple of weeks before that), but Senate Republicans will have to answer for a Griffin confirmation if Obama succeeds.  They stood on solid principle in denying Griffin a role in the NLRB after the unconstitutional power grab by Obama on recess appointments, and that should still be a line in the sand with Griffin and Block for any role in the administration, especially for one at the same agency with even more power to act.

That will mean using a filibuster threat to push Obama to withdraw the appointment, and a return to the brinksmanship of the past couple of months on confirmation votes.  Coincidentally or not, Democrats in the Senate are still talking about eliminating the filibuster for executive-branch appointments through a “nuclear option” rule change, even though their prospects for holding the upper chamber in 2015 are looking more and more dim.  The New Republic’s Noam Scheiber argues that Democrats should take the leap anyway, since it will be easier to elect Democratic Presidents in the future — and that they should take down the filibuster entirely, too:

Last month’s deal over Obama’s nominees came after a meeting among 98 senators in which, according to The New York Times, Democrats conceded “that their headlong drive to alter the rules may have been overly aggressive.” Many Senate Democrats seem genuinely alarmed by the idea of a filibuster-less existence should they lose their fragile majority.

But these fears are way overblown. Democrats would be in a stronger position if they went ahead and abolished the filibuster—not just for cabinet appointees and judges, but for legislation, too. That should strike fear in the hearts of Republicans and, at the very least, ensure that Democrats get their way when the GOP obstructs their nominees.

The basic reason for the Democratic advantage is that they’re likely to win the presidency a lot more often than Republicans over the next 20 to 30 years. The demographics are just relentlessly skewed against the GOP. As my colleague Nate Cohn has documented exhaustively, the growth of minority groups—especially Hispanics—means that the 2016 electorate will be as diverse as the 2012 electorate even if turnout among these groups drops back to its 2004 levels (that is, before the nation’s first black major-party nominee). And the trend lines only get worse for the GOP after 2016.

Scheiber later argues that just the nuclear threat should be enough to keep Republicans from actually using the filibuster on Obama’s appointees, or his legislative agenda.  Perhaps we’ll find out when Griffin’s nomination comes out of committee.