Executive Session

Floor Speech

By:  John Kerry
Date: Feb. 9, 2010
Location: Washington, DC


Mr. KERRY. Madam President, in 25 years in the Senate, this is the first time I've seen a vote on a nominee to the National Labor Relations Board fraught with such controversy and subject even to a filibuster. But I regret to say it is controversy manufactured by the Senate minority for only one reason--a filibuster as political tactic to stonewall President Obama at every turn.

Consequently, this nomination is an important test of the minority, a test of all those who for years under President Bush repeated and repeated demands for ``up or down votes'' on nominees, and got them without the kind of 8-month delays that have scuttled Craig Becker's nomination.

It is also a test of whether the Senate minority will accept the President's overtures to work together for the benefit of the American people or whether they will continue to vote strictly along party lines to obstruct those efforts for no reason other than political gains for their party.

No one disputes that Craig Becker is one of the preeminent authorities on labor law in the United States. He has taught at Georgetown, UCLA, and the University of Chicago and has authored numerous articles on labor and employment issues. He is a skilled litigator, who has advocated for workers' interests in virtually all Federal courts of appeals, including the U.S. Supreme Court.

Some of my colleagues have expressed concern about Mr. Becker's nomination because of his academic writings. It is true that Mr. Becker has published numerous articles on labor and employment law in scholarly journals, including the Harvard Law Review and the Chicago Law Review. His extensive writings argue for law labor reforms to allow workers to exercise their rights to associate and organize. But since when has there been anything disqualifying about taking a critical approach to existing law and challenging convention in his field?

Some in the minority object to Mr. Becker simply because he is a union lawyer--a counsel to both the AFL-CIO and the Service Employees International Union. But that hardly disqualifies him. The Senate has consistently confirmed Board members with backgrounds in unions as well as in management. And Mr. Becker has repeatedly said that he will approach all the matters before the Board impartially and with open mind--just what we need and expect at an agency as independent as the NLRB.

Here is what he said at his confirmation hearing:

As an attorney, I have sat across the table from management and also on the same side of the table, in both postures gaining an understanding of employers' concerns and often finding common ground between labor and management. It is this range of experience that, should I be confirmed, I will draw on in collaborating with my fellow Board Members to fairly, efficiently and faithfully apply the law.

Mr. Becker is widely respected by the legal community and management lawyers alike. Last month, 66 labor law professors from the Nation's top law schools wrote Senate leaders urging his immediate confirmation and attesting to his ``integrity, fairness, and dedication to advancing Congress' purposes in adopting federal labor law and to the role of the NLRB.''

And yet it has taken almost 8 months for us to get to this point--just to reach the point of finally getting to vote on his nomination. It is an 8-month journey that underscores just how committed the minority has been to prevent President Obama from staffing the executive branch of government or moving any agenda forward.

Mr. Becker was nominated by the President in July 2009, and in October the Senate Health, Education, Labor and Pensions Committee approved his nomination--and it did so with bipartisan support from Senator ENZI and Senator MURKOWSKI.

But after that, Senator MCCAIN placed a ``hold'' on his nomination, forcing the President to resubmit it last month. And then, at the insistence of the Senate minority, the HELP Committee was forced to hold a hearing the nomination, something the Committee hasn't had to do for an NLRB nominee since 1980.

Moreover, Mr. Becker dutifully answered hundreds of written questions from Republicans--more questions than Supreme Court Justice Sonia Sotomayor had to answer during her confirmation process. And when the Committee voted a second time on Mr. Becker, not one Republican voted for him, not even those who had supported him the first time around.

Critics have attacked Mr. Becker for his work on behalf of unions in the past. But most labor lawyers devote their careers either to representing unions and workers or to representing management. This avoids conflicts of interest. We have historically confirmed NLRB nominees from both backgrounds, and indeed the package of nominations before the Senate includes Brian Hayes, who practiced for many years as a management-side labor lawyer and has served as Republican HELP Committee labor counsel.

The fact of the matter is that the minority want to turn this nomination into a litmus test on legislation we have yet to consider--legislation on reforming how workers exercise their right to organize. The criticism repeated most often of Mr. Becker is that he would use his position on the NLRB to institute a binding system for organizing that would allow workers to select a union by signing cards. That system is backed by organized labor.

But here is what is important. Making a card check system binding on employers is something Craig Becker has said he would not and could not do. He is being filibustered over something he has specifically pledged not to do--and which is not the question before us today. It is no surprise that in his role as a labor lawyer, Mr. Becker has been a strong supporter of a legislative proposal to make it possible for workers to organize by signing cards in favor of a union. But he has clearly stated--and accurately stated--that only Congress can take such action. This confirmation is not, nor should it be about the Employee Free Choice Act legislation that we have yet to debate and consider. This is about ensuring that the NLRB can operate. And it is about whether or not a qualified aspiring public servant will be allowed to serve. As you know, the NLRB plays a critical role in protecting workers' rights. And yet, in the last 2 years, the NLRB has operated with only two of its five members. And the courts are split on whether a two-member NLRB can validly issue decisions. The Supreme Court is set to decide the matter later this year.

Meanwhile, though, the NLRB struggles along with a majority of its seats vacant--and I am sorry to be forced to acknowledge that may be exactly what our Republican colleagues want. Well over a year after President Obama's inauguration, nominees to key positions in the executive branch are still awaiting confirmation because they have been placed on ``hold'' by the minority. In most cases, the objections to the nominees have nothing to do with the nominee's qualifications and everything to do with parochial interests. Whether holding a nominee to try to steer a Federal contract to a State or to express opposition to Canadian tobacco legislation, the minority is turning the Senate's power to advise and consent into the power to bully and extort and, above all, to prevent Barack Obama from having the people in place necessary to govern effectively. And those who lose in this game are not Democrats, it is the American people. They need the executive branch to execute the laws we have passed and we should let it.

I think in the elections of 2006, 2008, and yes in the special election in Massachusetts in 2010, we have witnessed a rejection of the polarized and too often murky ways of doing business in Washington. But I regret to say, there is no better example of that kind of Washington backroom business than the way the minority has behaved on the nomination of Craig Becker.

And so, I respectfully ask my Republican colleagues to put aside the gamesmanship on this nomination and take a hard look at Craig Becker, his testimony, his record and his commitment to the rights of working men and women. He doesn't have to be your first choice to head the NLRB. But you have to acknowledge that the President has the right to make his choice. Advise and consent is not a blank check to delay and obstruct. And voting along party lines, especially on this nomination, with no regard for the broader national interest is not what any of us were sent here to do.


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