This week President Obama is launching a media blitz in support of Richard Cordray, his nominee to head the Consumer Financial Protection Bureau (CFPB). The Senate Banking Committee has confirmed Cordray, but the full Senate is likely to block his nomination this week, since Republicans have vowed to torpedo the CFPB director unless the Obama administration institutes changes that would cripple the agency. And without a director in place, the CFPB cannot assume many of its important new powers.
How will this prolonged standoff end? Unless the Obama administration changes its strategy, Cordray will likely suffer the same fate as other well-qualified nominees killed off by GOP filibusters, such as Donald Berwick, Peter Diamond and Goodwin Liu.
Since the beginning of the Obama administration, Republicans have escalated the use of the filibuster to historic levels and have blocked nearly 20 percent of Obama nominees. Half of the oversight positions mandated by financial reform legislation are vacant or occupied by temporary caretakers. So are two crucial seats on the Federal Reserve Board of Governors. One in seven federal district and circuit court judgeships are currently or soon to be vacant. The list goes on and on.
Yet although he’s faced unprecedented obstruction from Senate Republicans, the president has filled only twenty-eight vacant positions through recess appointments. Contrast that with George W. Bush, who made 171 recess appointments during his presidency. Despite Obama’s scant use of his executive authority when it comes to staffing the government, Republicans are now doing everything they can to block the administration from making future recess appointments. When they leave town, the House and Senate are staying in “pro forma” session, which Republicans claim prevents the president from making any recess appointments during that time.
But the the historical precedent for a pro-forma filibuster is murky at best, notes political scientist Jonathan Bernstein. The Justice Department under Bill Clinton said a president must wait for the Congress to be officially out of session for three days, but there’s no specification in the Constitution about that window, according to a 2004 Appeals Court for the 11th Circuit decision. So Obama could, in theory, make the recess appointments and then fight the GOP in court if/once they contest his authority.
Republicans counter that Harry Reid kept the Senate in pro forma session from 2007 onward to prevent President Bush from exercising his recess authority. But by that point Bush had already made six times as many recess appointments as Obama. So the president has a much stronger case to make. The public vastly prefers Obama to the Congress. If the president takes this fight to Congressional Republicans, he should have the upper hand.
CORRECTION: I should have mentioned that Berwick did in fact receive a recess appointment in July 2010 to lead the Centers for Medicare and Medicaid Services. He was formally renominated by the Obama Administration in January 2011 but blocked by Senate Republicans. Berwick could've received a second recess appointment to remain in the post, but may have had to forgo his salary as a result, according to a Congressional Research Service report.