After Senate Republicans blocked the nomination of Richard Cordray to head the Consumer Financial Protection Bureau, Democrats defiantly promised to continue to push the nominee using all available options. One of those options is using the presidential powers to bypass congressional approval to appoint a nominee during Senate recess—but Republicans will likely try to block that move with parliamentary tactics, possibly setting up yet another issue for Congress to fight about before the holidays.
President Obama nominated former Ohio Attorney General Richard Cordray to be the director of the Consumer Financial Protection Bureau, a watchdog agency created by the Dodd-Frank financial reform bill. Republicans have said they won't agree to confirm anyone to the position until Congress makes changes to the agency, including replacing the director with a board. On Thursday, Cordray's nomination failed to reach the 60-vote threshold to move forward, with Massachusetts Sen. Scott Brown the only Republican to vote in favor of confirmation. Maine Sen. Olympia Snowe, also a Republican, voted present.
After the vote, President Obama didn't rule out using a recess appointment to put Cordray into the director's seat.
"I will not take any options off the table," Obama said. "And I want to repeat what I said earlier: This is a law that was passed by Congress that I signed into law that is designed solely to protect American consumers." It was a sentiment echoed by defiant Democrats in the Senate. "This is not over. We will never sign on to any attempt to gut the agency," New York Democratic Sen. Chuck Schumer said after the vote. "I don't know what the president is going to do, but I think he should do everything within his power to get Mr. Cordray on board."
But don't expect to see Cordray as director soon.
In theory, the president has the power to appoint nominees for one year, without congressional approval, when Congress is in recess. But in reality, it gets a bit stickier. The Senate and the House need to pass an adjournment resolution to go into recess, and traditionally that is passed through a unanimous vote, allowing any Republican to object, and they aren't likely to allow Obama a chance to make his appointments. For most of 2011, the Senate leadership has resolved the issue by never truly going into recess--during a break, the Senate opens briefly every few days just to ensure that it's never out of session. This is why Obama hasn't made any recess appointments since December of 2010. A Democratic leadership aide in the Senate expects that this is what will happen again this year, preventing Obama from making any recess appointments for the foreseeable future.
The issue comes to a head at a time when Democrats are expressing growing frustration with the confirmation process. Earlier this week, Republicans also blocked judicial nominee Caitlin Halligan for the D.C. Court of Appeals. Senate Majority Leader Harry Reid said that Republicans are going back on an agreement they made in 2005—when the roles were reversed and Democrats were defending judicial filibusters—to use the parliamentary tool against nominees only under extraordinary circumstances.
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