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Republican Senator Mike Lee’s Opposition to EEOC Nominee Threatens to Throw Commission Into Chaos


While a threatened federal government shutdown has garnered a lot of attention lately, Utah Senator Mike Lee’s opposition to an Equal Employment Opportunity Commission (“EEOC”) nominee, Chai Feldblum (Feldblum”), threatens to throw the EEOC into chaos by the start of next year.

Feldblum, currently one of five EEOC Commissioners, has a term that ends at 11:59 PM on December 31st.  President Donald Trump has nominated her for another term, after she was nominated by President Barack Obama and confirmed by the Senate in 2010.  (The party that holds the presidency nominates three EEOC Commissioners, the minority party nominates the other two.  In this case, Democrats chose Feldblum to again serve another term and President Trump put her up for nomination before the Senate.  This is common, notwithstanding political climate in Washington, DC as of late).  The Senate usually fast tracks the process and confirms EEOC nominees as a group, often with unanimous approval by Republicans and Democrats.

This year, however, Senator Lee has taken a vocal opposition to Feldblum’s nomination as he seeks to block it.  His reasoning?  He has argued that Feldblum’s position on marriage and LBGTQ matters should prevent her from being confirmed for another term.  (Feldblum is the first openly gay EEOC Commissioner).  Senator Lee has further suggested that as Commissioner, Feldblum would seek to “use the might of the government to stamp out traditional marriage supporters.”

So that begs the question:  Now what?  Let us break things down here:

  1. If Feldblum (and the two other nominees also awaiting confirmation) are not confirmed by the Senate by the start of the new year, the EEOC will be left with only two Commissioners which is insufficient to establish a quorum.  Without a quorum, the EEOC would be unable to conduct business as usual, such as not being able to issue guidance documents, file amicus briefs, and be unable to hire expert witnesses for cases, among other matter (which critics of Senator Lee say is untenable, especially in the midst of the #MeToo movement and ongoing fight against sexual assault in the workplace).  This option would only prolong the stalemate and draw unwanted attention to the matter, mainly for Republicans if the general public coalesced around the idea that Senator Lee’s opposition was unreasonable.
  2. Another option is for Republican Senate Majority Leader Mitch McConnell to put the nomination up for a regular confirmation vote   While Republicans have majority control of the Senate, Democrats think they have the votes to have Feldblum confirmed, as Republicans have voted to confirm her previously.  If this were to happen, it likely would not garner the intense interest that current Supreme Court Justice Brett Kavanaugh received before the Senate as a judicial nominee earlier this year.  However, this option ultimately requires Senator McConnell to act quickly, which is not guaranteed given the limited time left before the end of the year and other legislative matters likely ahead of this on the Majority Leader’s to do list.
  3. Alternatively, Democrats could choose to not proceed with Feldblum’s nomination and instead select someone else.  However, Democrats and LGBTQ advocates caution that doing so would set a bad precedent of allowing one Senator to dictate EEOC nominations going forward, in contrast with the traditional bipartisan support for Republican and Democratic EEOC Commissioner nominees in the past.  Unless the general public started calling for Democrats to stand down and withdraw Feldblum’s nomination, I do not see this is a realistic option.
  4. With that being said, Senator Lee could stand down himself and withdraw his opposition to Feldblum’s nomination.  An exchange of sorts, perhaps Senator Lee not opposing Feldblum’s nomination in exchange for Democrats not opposing a nominee of Republicans is a truce that could be arranged.  This is a realistic resolution to the matter as I think Senate Republicans would rally around the proposal in order to get one of their own nominees (to the NLRB or to a Circuit Court, for instance) confirmed.
With that being said, this is a developing situation to keep a close eye on during the next few weeks leading into January.


For additional information:  https://www.vox.com/2018/12/17/18140798/lgbt-eeoc-mike-lee-chai-feldblum-discrimination

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