In a surprising move yesterday, President Obama withdrew the nomination of Sharon Block to the National Labor Relations Board because of Republican objections. Block previously served on the Board from early 2012 to mid-2013 under a recess appointment, which was ruled unconstitutional by the Supreme Court in Noel Canning in June of this year. Despite strong Republican opposition to Block, President Obama nominated her to replace Nancy Schiffer, whose term ends December 16, 2014.

The withdrawal of Block’s nomination comes as a surprise, even given the Republicans’ strong showing in the mid-term elections, given that Block’s nomination passed the HELP committee in September and was expected to get a quick vote in the Senate’s lame duck session. Commentators believe that Block’s nomination was pulled to ensure a quick confirmation of Schiffer’s replacement before December 16 to prevent a standstill at the NLRB with only two Democrat and two Republican members. Given that Democrats will likely try to address a number of other matters during the waning days of their control of the Senate,

Senate Republicans would have needed only to disrupt or delay the agenda to sideline a vote on Block. If the White House does not get an NLRB nominee approved before the Senate session ends, it will likely find it very hard to get any nominee through next year when the Republicans will have the majority.

In Block’s stead, President Obama has nominated Lauren McFerran, chief labor counsel for the Senate Committee on Health, Education, Labor and Pensions (HELP). According to the Wall Street Journal, prior to serving on the HELP committee as senior labor counsel for Sen. Ted Kennedy and Sen. Harkin, McFerran was an Associate at Bredhoff & Kaiser, PLLC and a Law Clerk for Chief Judge Carolyn Dineen King on the U.S. Court of Appeals for the Fifth Circuit.

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