Update: The Midterm Elections and the NLRB

President Obama withdrew his nomination of Sharon Block to replace Nancy Schiffer on the NLRB when Schiffer’s term expires on December 16, 2014. He has nominated Lauren McFerran to the position instead

On Tuesday, I wrote that Senate Democrats had to decide how to handle replacing NLRB Member Nancy Schiffer, whose term expires on December 16 of this year. President Obama nominated Sharon Block to the position back in July, which some Republicans vehemently opposed due to Block’s time as a recess appointee to the Board. On Wednesday, the White House announced that the President was withdrawing Block’s nomination and instead nominating Lauren McFerran, a top staff member at the Senate HELP Committee, to replace Schiffer. In the announcement, a White House spokesperson called Block a “highly qualified nominee” but said the President had decided to withdraw her nomination because “Senate Republicans continue to object to her confirmation due to their protest of the president’s recess appointments to the NLRB.” Senator Tom Harkin, who will continue to chair the Senate HELP Committee until Republicans take control of the Senate in January, issued a statement expressing disappointment at the withdrawal of Block’s nomination but offering high praise for McFerran. Harkin made it clear that he intends for the Board to remain “fully functional” and for McFerran to receive a “speedy confirmation,” meaning he will probably push for her to be confirmed during the lame-duck session.

The HELP Committee almost immediately scheduled a hearing on McFerran’s nomination for November 20. McFerran will need to be approved first by the Committee and then by the full Senate. While the exact timing of these votes is unclear, the Wall Street Journal reports that if everything goes smoothly, the Senate could vote on McFerran by mid-December, just a few weeks before the Republican takeover. While McFerran is not the lightning rod that Block was, a Republican majority would still likely block her nomination or any other Democrat’s nomination to ensure a gridlocked, and thus largely nonfunctional, NLRB. Before assuming her current roles as chief labor counsel and deputy staff director to the HELP Committee, McFerran served on that committee as senior labor counsel to Senator Ted Kennedy and to Harkin. Earlier in her career, McFerran worked at labor-side firm Bredhoff & Kaiser, PLLC.

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