Obama’s Nullification Crisis
Can the president outwit Republicans who want to filibuster his nominees out of existence?
Chip Somodevilla/Getty Images.
Richard Cordray was the safe choice to run the Consumer Financial Protection Bureau. The Ohio Democrat didn’t clash with bankers over TARP oversight, like Elizabeth Warren had. She, as Republican ad-makers are now telling Massachusetts voters, is a Harvard professor who loves Occupy Wall Street. Cordray is a five-time Jeopardy! champion and a former state attorney general. Easy sell.
So Cordray went through the nomination junket. Democrats put him up for a vote. Shortly after 10:30 a.m. today, he was filibustered by all but one Republican. President Obama, who’s watched a number of nominations fall before Mitch McConnell’s buzzsaw, tromped down to the White House briefing room to share his outrage.
“My hope and expectation,” said Obama, “is that Republicans who blocked this nomination come to their senses.” With that indignation out of the way, he fielded a question about whether he’d appoint Cordray in a recess. “We’re gonna look at all our options,” he said. He might have to. “Part of what’s happened over on Capitol Hill is they will hold up nominations to make points. I’ve got assistant secretaries to the Treasury who are being held up for no reason just to see if they can use that to reverse some law that’s already been passed.”
That’s true. Republicans blocked Cordray because, having lost the fight over whether the CFPB should exist, they want to prevent it from functioning. Filibuster is a fine, accurate word for this, but a better word might be nullification. And this GOP attempt at nullification will probably work.
Republicans will talk about this strategy to anyone who listens. They talked about it in the run-up to the vote. “We really are not arguing about Mr. Cordray,” Sen. Kay Bailey Hutchison, R-Texas, told PBS News on Dec. 7. “I think he does have qualifications, if we could get this structure set, so that there would be an accountability in this agency, which there is not.”
That day, I asked Sen. Richard Lugar if the CFPB would be hampered by a Cordray filibuster. “I don’t see that as a problem,” he said. “I think the creation of this particular organization in this form was a legislative disaster. It’s not a question of the merits of the nominee. It’s a question of accountability.”
This is what Republicans were saying about the CFPB in 2010. They didn’t like that it was set up as part of the Federal Reserve, and they didn’t like that its chairman would be given a five-year term, which meant he didn’t serve at the pleasure of the current president. They lost; the CFPB was born.
Republicans responded to the birth of the CFPB exactly how Hiroo Onada responded to the end of World War II—by pretending they hadn’t really lost. After today’s vote, multiple Republicans—Sen. Jon Cornyn and Sen. Roy Blunt, to name two—announced that they’d defeated an “unaccountable czar.” Conservative columnist Michelle Malkin labeled Cordray a “super-czar.” A “czar,” according to the legislation that House Republicans have introduced to ban such positions, is somebody “inappropriately appointed to such position (on other than an interim basis), without the advice and consent of the Senate.” When GOP leaders applied that name to Cordray, they shifted the goalposts. Now, a “czar” is simply somebody who does a job that Republicans don’t want to exist.
David Weigel is a Slate political reporter. You can reach him at email@example.com, or tweet at him @daveweigel.