DELAYED NOMINATIONS, LABORED RELATIONS
BY JULIANNE MALVEAUX
Are members of the United States Senate getting along or getting even
with each other? Republicans are trying to push through a set of
nominations, while Democrats want more deliberation on them. Two weeks ago,
the Democratic and Republican leaders of the Senate Judiciary Committee
kicked civility to the curb and accused each other of unfairness in the
judicial selection process. Neither Orrin Hatch (R-Utah), and Patrick Leahy
(D-Vermont), is happy about the way the other has handled the judicial
nominations. Last week, the Judiciary Committee could not degree on whether
to confirm President Bush’s nomination of Ted Olson for Solicitor General.
Since they were deadlocked in a 9-9 vote, the entire Senate will consider the
nomination.
Before Republicans start complaining about unfairness, though, they ought to
pick up William B. Gould IV’s memoir, Labored Relations: Law, Politics, and
the NLRB. Gould, a Stanford Law School professor, served as Chairman of the
National Labor Relations Board for four and a half years, from March, 1994
until August, 1998. His view of the labored relations on Capital Hill
illuminations, but also puts this year’s nomination skirmishes in some
context.
Partisans say that a sitting President is entitled to his choice of
appointees as judges, cabinet offices, and heads of regulator organizations.
But if every Bush selection were subject to the scrutiny that Bill Gould
experienced, it would take until 2006 to fill all federal appointments (it is
not clear if I am exaggerating or not)! Gould started talking to President
Clinton’s appointments secretary in May of 1993. After experiencing months
of attacks and “a stressful period”, he was confirmed almost ten months after
he was nominated. In his memoir, he notes that confirmations are taking
longer. Under President Kennedy, confirmations took 2.4 months; under
Reagan, 5.3 months. In 1993, it took 8.5 months for a nomination to snake
its way through the confirmation process.
Gould is no whiner; indeed, he survived the process of confirmation and made
significant contributions as Chairman of the NLRB. Still, the barrage of
biased criticism directed at him by the National Right to Work Committee and
the Labor Policy Association, both extreme right-wing anti-union
organizations, would have tested a fainter soul. Gould’s distinguished
scholarship in labor relations left a paper trail that his opponents could
easily attack, but it also allowed him to place his nomination in context.
As he writes in his memoir, “confirmation struggles involving NLRB
appointments had occurred regularly from the 1970s onward”. His struggle,
then, was no exception.
Gould describes a Senatorial incivility and dishonesty that is, frankly,
disturbing. In particular, then-Senator Nancy Kassebaum (R-Kansas), who was
the ranking Republican member of the Senate Labor and Human Resources
Committee, seemed hostile to the Gould nomination, and issued a number of
both combative and false statements around the nomination. Too, Gould was
subject to the “racial profiling” that many African American candidates
experience. Supposedly, he was a gambler and a Communist sympathizer who
visited both South Africa and Cuba. In fact, under government auspices,
Gould had delivered lectures on labor law in South Africa, and had worked
with trade unions there. For some, his dialogue with South African unions
was problematic, but the scholar’s interest in international labor issues
should not have caused alarm.
Why did Gould have so much trouble? He says that some Republicans are still
“unreconciled to the sixty-five-year old statute”, the National Labor
Relations Act, that he is charged to administer. The NLRA, which was passed
in 1935, grants unions the right to bargain collectively. Subsequent
legislation, the Taft-Hartley Act of 1946 and the Landrum Griffin Act of 1957
provide a legal context for collective bargaining, and regulate the
activities of unions. Still, by law, collective bargaining is desirable
public policy. Opposition to the Gould nomination was, in large part,
opposition to existing policy. In the four years of his chairmanship, Gould
experienced other kinds of obstruction and opposition, even as he promoted
new settlement procedures and reduced the NLRB’s case backlog.
Fewer than one in six of our nation’s workers belongs to a union or is
governed by a collective bargaining agreement. Some would say the reduction
in the level of unionization is a function of union inefficiency and
obsolescence. Yet a reading of Gould’s book suggests that active political
interference in the right to organize and bargain may be part of the reason
that the level of unionization has dropped. This impacts our nation’s
economic health, since workers who cannot bargain for robust salaries are
also constrained from fuelling economic growth.
Labored Relations is a memoir of one man’s experience at one federal agency.
It is also an account of the tortured dealings that members of Congress have
with each other and with Presidential appointees. It puts the confirmation
wars of the past few months in a much broader context.