Senate Democrats Face Pressure To Confirm Biden Nominees

Donald Trump’s next presidency could usher in a dark time for labor unions, but there’s one way Democrats might limit his damage to the labor movement this time around.

Senate Democrats have an opportunity to reconfirm Lauren McFerran, the chair of the National Labor Relations Board, to another term at the agency, ensuring a Democratic majority into the second half of 2026. They only have about five weeks to do it since Republicans will take control of the Senate and its confirmation agenda on Jan. 3.

There’s a lot at stake. The independent NLRB investigates unfair labor practices and enforces workers’ rights; its board in Washington, which typically has five members, rules on whether employers have broken the law and what the remedies should be. The agency’s worker-friendly tilt since President Joe Biden took office has helped sustain a wave of union organizing.

In just the latest example, the board issued a ruling this week barring employers from holding anti-union “captive audience” meetings at work, finding their mandatory nature to be coercive and therefore illegal. It’s just the sort of precedent-setting decision that could benefit unions — and that a Trump board could happily reverse.

The question is whether Democrats would move quickly enough to delay a Republican majority by a year or more.

“It’s incredibly important,” Sharon Block, a former NLRB member who’s now a labor law professor at Harvard Law School, said of reconfirming McFerran. “There’s got to be the voice of somebody to stand up for the board and for the [law]. To have somebody like Lauren there, it just seems more critical than ever.”

The board currently has a 3-1 Democratic majority, with one seat vacant. McFerran’s term ends in mid-December; the board members’ terms are staggered so that they end in different years. If Democrats don’t reconfirm her by their holiday break, Trump could flip control to Republicans with new nominees after he’s inaugurated. The new board could then set about overturning pro-worker rulings of the last several years.

McFerran’s nomination is part of a bipartisan, two-nominee package that includes a Republican, Joshua Ditelberg, to fill the seat that’s empty. Both nominations have been approved by the Senate committee overseeing labor nominees; they still need to get floor time and a chamber-wide vote.

Jeff Hauser, director of the Revolving Door Project, a progressive group that tracks corporate influence on executive branch nominations, has urged Senate Democrats to confirm whatever officials they can before time runs out. Biden nominees await at the Securities and Exchange Commission, the Federal Deposit Insurance Corporation and other independent agencies.

Hauser said confirming Democratic judges to the bench will probably take priority, especially given the way Trump and Senate Republicans managed to reshape the judiciary during his first term. He also fears Democrats will take their foot off the gas heading into Christmas.

“The NLRB is critical, and a majority would be awesome,” Hauser said. “I don’t think Democrats should resign [from confirming nominees] when they don’t have to.”

Sen. Elizabeth Warren (D-Mass.) is perhaps the most vocal proponent of Senate Democrats working around the clock to install judges and federal officials during the lame-duck session. A supporter of McFerran’s, Warren told HuffPost that Democrats should use “every minute” they have to limit Trump’s picks.

“While still in charge of the Senate and the White House, Democrats must act with urgency to strengthen unions and protect workers’ rights,” Warren said in a statement to HuffPost. “We have to use every minute left in the end-of-year legislative session to confirm federal judges and key regulators like Lauren McFerran.”

A labor board spokesperson declined to comment on the pending nominations, which come at an uncertain time for the agency.

The NLRB is facing existential legal challenges from SpaceX and other employers who have adopted right-wing arguments that the agency’s structure is unconstitutional. The cases are working their way through federal court in Texas and could end up before the Supreme Court, where the agency’s future would be in the hands of a conservative supermajority hostile to the administrative state.

Those attacks provide one argument for Democrats to exercise caution in confirming McFerran to another term.

Locking in a Democratic majority could prompt the Trump administration to try to fire McFerran and other board members before their terms end in order to get a Republican majority, potentially upending how the board operates and transitions from one presidential administration to the next.

Doing so would test whether the president actually has the legal power to dismiss members of the bipartisan board without neglect of duty or malfeasance at play. This question is part of the case SpaceX has mounted against the NLRB, arguing that restrictions on the president’s removal powers over board members violate the Constitution.

It’s obvious where at least one of Trump’s top advisers would stand on this issue. Billionaire SpaceX owner Elon Musk, the richest man in the world, created a super PAC that poured an estimated $200 million into Trump’s election effort and is now helping him shape his next administration and policy agenda.

Hauser said he can envision a scenario where the Trump administration takes McFerran’s confirmation as an invitation to a much larger and potentially dangerous legal fight.

“That would be the best argument for not emphasizing this,” he said.

The dilemma is part of the new political reality for Democrats after losing the White House, the Senate and the House, leaving them with very limited political capital and an unpredictable, retributive president to work with.

But Hauser argued that a clash over board nominations would still be worthwhile and could underscore the judicial extremism of Trump-appointed federal judges and the Supreme Court if they let Trump win.

“In the long run, making a fight over the NLRB and forcing Trump to fire people is the type of fight Democrats should be picking,” he said.