Let’s Make a Deal!


Updated 5:21 p.m.

Reportedly there is a tentative deal between Republicans and Democrats in the U.S. Senate which will avoid the so-called “nuclear option” of eliminating filibusters of certain Presidential nominations. We do not have all the details, and it remains to be seen how it will play out, but here is what we have heard are the basics.

The President will find replacement nominees for Members Sharon Block and Richard Griffin, whom he recess-appointed on January 4, 2012. It is the validity of their recess appointments (along with that of Terence Flynn, who has since resigned) which is the basis for the dispute in the Noel Canning case (and many other similar cases). It is also reported that the new nominees will be Nancy Schiffer, former associate general counsel of the AFL-CIO, and Kent Hirozawa, current chief counsel to current NLRB Chairman Mark Pearce.

The other NLRB nominees involved in the “nuclear option” imbroglio (Chairman Pearce and Republican nominees Phillip Miscimarra and Harry Johnson) – along with the replacement nominees for Members Block and Griffin – will likely each receive an up or down vote at the same time in the Senate, thus avoiding a Board controlled by the two Republicans while awaiting the replacement nominees. It is likely that the vote will occur before Chairman Pearce’s term runs out in August.

Thus, if all goes as reportedly and tentatively planned, there will be a confirmed five member Board for the first time since 2003, when the Board consisted of Chairman Robert Battista, and Members Alex Acosta, Wilma Liebman, Peter Schaumber and Dennis Walsh.

The President’s nominees to the Environmental Protection Agency, the Consumer Financial Protection Board and the Department of Labor will also reportedly receive up or down votes in the Senate as part of the tentative deal.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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