Nullification Lives: GOP Blocks Cordray

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JONATHAN COHN DECEMBER 8, 2011

Nullification Lives: GOP Blocks Cordray

The Senate on Thursday took up the nomination of Richard Cordray, President Obama’s choice to lead the new consumer protection board. It did not vote to confirm him. The outcome isn’t at all surprising. But it’s important to take a step back and understand just what is happening here, because Republicans aren't simply weakening consumer protection. They're also weakening American democracy.

Remember, the Senate didn’t actually vote on Cordray’s nomination. The vote never took place because the Republican caucus, with one exception, are supporting a filibuster the nomination. Together, they do not represent a majority. On the contrary, 53 senators voted to proceed with the vote. Had the vote taken place, a majority likely would have voted to confirm him. But that’s the way the Senate works today: The majority doesn’t rule. The minority does.

If you think that’s a violation of the spirit, if not the letter, of the U.S. constitution, you are quite right. The document specifies instances when the president needs consent of a super-majority. Appointments like these are not among those instances.

But the reality actually even worse than it seems. The senators upholding the filibuster haven’t suggested Cordray is unqualified for the job. Rather, they are holding up the nomination because they don’t like the agency he would head or the law it is supposed to enforce – the Dodd-Frank Act, which is designed to police the banking and credit card agencies. They’ve said, explicitly and repeatedly, they will allow a vote on Cordray only if and when the president agrees to changes in the law. 

I’ve said this before but it’s worth repeating. When a minority of senators use the power to block votes over confirmation in order to undermine a law – a law that they lack the votes (or presidential support) to overturn – that’s not the way things are supposed to work in our system. It’s the “normalization of extortion politics,” as Steve Benen of the Washington Monthly has called it.  It’s also, as Brookings historian and constitutional expert Thomas Mann once said, a “modern-day form of nullification.” 

The word nullification is a loaded one, because it harkens back to the fights between North and South that predated, and ultimately precipitated, the Civil War. But it really is the same thing, in principle. And it’s been happening a lot lately. Most famously, Republicans refused to allow a vote on Don Berwick, Obama’s first choice to run Medicare and Medicaid – not because they seriously doubted his qualifications but because they don’t like the Affordable Care Act. (Yes, they objected to some statements he made about British health care. But the statements were totally anodyne, something virtually everybody who really understands health care, on both the left and right, would find unobjectionable.).

As I wrote a while ago, in this space: 

the constitution gives the Senate the power to “advise and consent” on executive branch appointments. And from the early days of the republic through the end of the 19th Century, the Senate and president fought regularly over the precise boundaries of that power – most famously when the Reconstruction Congress passed a law forbidding then-President Andrew Johnson from removing a cabinet official without congressional permission. It was his decision to flout that law that drew impeachment and, very nearly, his removal from office.

But since that time the Senate has deferred more to the president on appointments, partly on the theory that a modern society needs a president who could staff the executive branch with like-minded officials. Although senators have frequently raised substantive and ideological objections to nominees, explicitly or implicitly, they did not engage in such wholesale, blanket opposition to appointments based (explicitly or even implicitly) on governing philosophy. As the Senate's own website confirms, the Senate voted down nominations "only in the most blatant instances of unsuitability." The obvious exception has been judicial appointments. But even those have increased dramatically in the last few years and, besides, those are lifetime appointments to an entirely separate branch of government. 

About the only hopeful element of this story is that Obama isn’t giving up on this fight. He’s promised to keep fighting for Cordray’s nomination and, so far, he’s been true to that promise. He mentioned Cordray’s nomination prominently in Tuesday’s major speech on “fairness.” Today, after the vote, he went to the press room to issue a statement – and vowed, among other things, to keep open the option of a recess appointment if Republicans wouldn’t allow a vote. Afterwards, he began a series of television interviews with local stations from around the country. The states – Indiana, Maine, Nevada – all have senators that will not be comfortable voting against the president’s nominee to police the banks.

Will it work? Maybe. The one senator who broke ranks on this vote is Scott Brown, of Massachusetts, who is facing a tough re-election fight against Elizabeth Warren, champion of the consumer. Regardless, it's good to see Obama making this effort -- and better still, by the way, to see the entire Democratic Senate caucus behind him.

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posted in: jonathan cohn, politics, andrew johnson, richard cordray, thomas mann, senate

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