President Obama introduces Richard Cordray, left, as his re-nominee to… (Kevin Dietsch / EPA )
In requiring the U.S. Senate to confirm presidential appointments, the Constitution aims to ensure a second level of scrutiny of the qualifications of government officials. But Senate Republicans have hijacked the confirmation process, not only to thwart individual nominees but to undermine laws they don't agree with. If they continue in their obstructionism, Senate Majority Leader Harry Reid (D-Nev.) should revisit the possibility of doing away with the filibuster for nominations.
The most immediate test case involves the National Labor Relations Board, the federal agency that moderates disputes between labor and management. President Obama has long been trying to fill three vacant seats on the five-member board but has been consistently stymied by the GOP. Finally, in January 2012, Obama used his authority to make recess appointments when the Senate is out of session to name three people to the board. But a federal appeals court ruled in January that those appointments were invalid because they didn't occur during a break between formal sessions of Congress, a hiatus that now occurs only once a year (and sometimes not at all).
So Obama is trying again. On Thursday, the Senate Labor Committee will hold a confirmation hearing for five nominees to the NLRB. Now that the president is following what the Republicans insist is the proper route for bringing the board up to strength, the question is whether they will respect the process they champion by allowing an up-or-down vote on the nominees — or cynically filibuster the nominations as a way of preventing the NLRB from doing its job.
Their past behavior is not encouraging. In 2011, Republicans blocked a vote on Obama's nomination of Richard Cordray to head the Consumer Financial Protection Bureau. They objected not to Cordray's qualifications but to the structure of the new office he would oversee. Faced with Republican intransigence, Obama gave Cordray a recess appointment, whose legality is now also in question.
Obama has renominated Cordray. If Republicans continue to hold him hostage, and if they likewise filibuster Obama's NLRB nominations, Reid should heed pleas from members of his caucus that he trigger the so-called nuclear option and abolish the filibuster for nominations by a majority vote. If Republicans are unhappy with the Dodd-Frank law or the National Labor Relations Act, they should seek to amend those statutes directly and not through the back door of the confirmation process.