Two of President Obama’s “recess” appointments will begin their tenure at the National Labor Relations Board without having undergone background checks required of all nominees to the board, which are used to determine any past impropriety or conflicts of interest.
The Senate committee handling the nominations of Democrats Sharon Block and Richard Griffin to the NLRB never received the required paperwork from the two nominees. The president submitted the nominations to the Senate on December 15, a day before it entered pro forma session, with most Senators returning to their home states.
The paperwork includes information required for a background check, “which addresses whether taxes are paid and if the nominee is facing any pending civil or criminal investigations,” according to a committee release. “This also ensures that there are no conflicts-of-interest before being confirmed for the position.”
After the committee receives that information, staff generally conduct interviews during which they ask nominees about the information provided. A source familiar with the committee’s advice and consent work said its staff – and hence committee members – would be woefully uninformed on the nominees until paperwork was filed and those interviews took place.
The president has invoked alleged congressional gridlock as justification for his likely-unconstitutional “recess” appointments (not actually made during a recess), repeatedly invoking his “We Can’t Wait” slogan.
“Senate Republicans’ disposition towards [the NLRB nominees] could not have been more clear,” claimed White House press secretary Jay Carney on Thursday. But committee spokesman Joe Brenckle said members had not taken positions on the nominees, for the simple reason that they had not undergone even the most basic vetting procedures. In other words, there is no evidence that the committee – let alone the full Senate – would have blocked those nominations even if they had come up for a vote.
In fact, HELP committee rules specify that action cannot be taken on a nominee until five days after the paperwork is filed. So even if members had wanted to move Block and Griffin forward, they would have been unable to do so by the committee’s own written procedures.
The Senate’s advice and consent duties act as a check on the executive, but they are also a mechanism for weeding out unsuitable or unqualified nominees. The president’s end run around the Senate is not just an affront to the separation of powers; it undermines the practical and immediate importance of the Senate’s role in vetting candidates for federal office.
Note: this post has been revised.
