The National Labor Relations Board was created in 1935 by the National Labor Relations Act and is tasked with adjudicating unfair labor practices. The board has been the source of increasingly rancorous slap-fighting in recent decades, and so while ordinarily the board is comprised of five members, appointed by the president and approved by Congress, it's been limping along with only two members since the end of 2007, while senators—then Democrats, now Republicans—gaily hold up the nominations process for the remaining nominees.
As noted earlier, Dahlia Lithwick discussed a lesser known but still quite telling oral argument on this point. Justice Scalia has a point -- if the rules are lax when something like this occurs, there is no pain for letting it linger on. Delays after awhile actually cause problems ... who knew? There has been a significant update. Let me add something cited by a New Republic article cited in DL's piece:
Obama has followed this pattern. Last spring, the White House reached an agreement with the Democratic chairman (Ted Kennedy) and ranking Republican (Mike Enzi) of the Senate Health, Education, Labor, and Pensions (HELP) committee to nominate two Democrats, Becker and Mark Pearce, and one Republican, Brian Hayes. Becker was a highly regarded professor at the University of Chicago Law School, as well as a counsel for the SEIU and AFL-CIO. Pearce is a Buffalo labor lawyer. And Hayes was a management lawyer for 25 years who also served as the Republican labor policy director on the HELP committee.
Well, Becker and Pearce were just recess appointed.* I personally don't think short mid-term breaks are what the Recess Clause covers, but practice and court review (even as to judges) have not backed me up. And, CJ Roberts appears to think it is a good idea. So, go for it. Things have gone on too long here. Plus, though important, these picks aren't the same as elite picks like Cabinet members or life time appointments even respecting to relatively minor district judges.
And, while focus in on health care or whatnot, important matters like this help explain why imperfect choices like Obama should be voted for over certain others.
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* The third nominee, a Republican, can be left up to the Senate. If Sen. McCain didn't start the process to hold up the other nominations, all three would have been voted for already. It is not a total win though -- a recess nomination only lasts to the end of this year. So, why doesn't the Republicans just let the Senate vote all three for a full term?
Well, that would the sane thing.