- The Washington Times - Wednesday, July 24, 2013

President Obama’s two nominees for the National Labor Relations Board cleared a Senate committee Wednesday as Republicans accused Mr. Obama of trying to pack the D.C. Circuit Court, a long-simmering battle that could spill over into another ugly floor fight before Congress leaves town in August.

The Senate Health, Education, Labor and Pensions (HELP) committee voted 13-9 to send the nominations of Nancy Schiffer, a former AFL-CIO associate general counsel, and Kent Hirozawa, chief lawyer for the board’s Democratic chairman, to the full Senate for consideration.

Ranking member Sen. Lamar Alexander, Tennessee Republican, voted against the two nominees, saying he doesn’t think they could be neutral arbiters on the board given their past ties to unions and labor. But he made clear he wasn’t about to hold up their nominations on the floor.

“The nominees will have an up-or-down vote, whenever the leadership schedules the vote and that probably will be next week,” Mr. Alexander said.

Mr. Obama agreed to send down two new nominees after a federal court ruled several “recess” appointments unconstitutional. An up-or-down vote on the two new nominees was part of a deal Senate leaders agreed to last week in exchange to put off — for now — an attempt to change the Senate’s filibuster rules with a simple majority vote.

After the Senate confirmed Srikanth “Sri” Srinivasan to fill one D.C. Circuit vacancy in May on a 97-0 vote, Mr. Obama declared in June that he was constitutionally obligated to fill the remaining three open seats. The 11-member court now has four Democratic appointees and four Republican appointees, though there are still senior, semi-retired judges that hear cases.

But the Senate agreement did not extend to judges who, unlike Cabinet or executive-branch appointees, can shape and decide law for decades. U.S. Supreme Court Chief Justice John G. Roberts Jr. once held one of the U.S. Court of Appeals for the D.C. Circuit seats.

The Senate Judiciary Committee held a hearing Wednesday for Georgetown law professor Cornelia Pillard, and could vote to send her to the full Senate for consideration as early as Thursday.

Republicans derided Mr. Obama’s move as an attempt to pack the court with left-leaning judges.

“I believe it is an attempt by this administration to pack that court because the D.C. Circuit has been one of the few restraints on government power exercised by the Obama administration,” Sen. Ted Cruz, Texas Republican, said Wednesday.

Indeed, the court is one of several that has ruled Mr. Obama’s appointments unconstitutional.

“With the administration’s controversial executive agenda, the president appears to have targeted the D.C. Circuit in hopes he can pack the court and stack the deck to his advantage,” said Sen. Mike Lee, Utah Republican.

Democrats argued that the court’s current caseload is higher than when Republicans opposed filling vacancies during President Clinton’s administration, while Sen. Chuck Grassley, the Judiciary Committee’s ranking member, said that in terms of raw numbers, the D.C. Circuit has the lowest number of total appeals filed annually among all the circuit courts of appeals.

“It is difficult to see why we would be moving forward with these nominations, especially in a time when we are operating under budget and fiscal constraints,” Mr. Grassley, Iowa Republican, said in a prepared opening statement.

Mr. Grassley has introduced a bill that would reduce the number of slots on the court from 11 to eight. The other eight Republicans on the Judiciary Committee, including Mr. Cruz and Mr. Lee, are all co-sponsors.

But Chairman Patrick J. Leahy, Vermont Democrat, among others, disagreed.

“The D.C. Circuit caseload argument has been made in earnest only by Senate Republicans when they wish to prevent a Democratic president from fulfilling his constitutional duty to nominate judges,” he said in his opening statement.



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