WASHINGTON: During the height of the ferocious 1989 effort by Senate Democrats to block confirmation of former Texas Republican Sen. John Tower as secretary of defense, an exasperated Senate Minority Leader Bob Dole, R-Kan., took the floor to ask of his colleagues, “What did John Tower ever do to us to deserve this kind of treatment?”
Those same words came to mind last week as House and Senate Republicans continued to pummel Richard Cordray, who is serving as director of the Consumer Financial Protection Bureau. By the end of the week, you couldn’t help asking: What did Rich Cordray do to deserve this kind of treatment?
If Cordray were a film star, no director would ever cast him as the villain. The choir boy, maybe. The boy next door, perhaps. But not the guy in a black hat.
He is civil and reasonable. He has held two elected statewide positions, treasurer and attorney general. He has a superb educational background, having earned a law degree from the University of Chicago. He was a law clerk to U.S. Supreme Court justices Byron White and Anthony Kennedy. He has argued seven cases before the nation’s high court. Need we go on?
His only apparent crime was that he answered the telephone a couple of days after he lost re-election in 2010 as attorney general to Republican Mike DeWine. The caller was Elizabeth Warren, the architect of the bureau created by Congress in 2010 and now a Democratic senator from Massachusetts.
“Would you like to join the agency?” she asked him. A month later, he accepted her offer to become the bureau’s director of enforcement.
When it became obvious that Senate Republicans would never confirm Warren as director of the bureau, President Barack Obama turned to Cordray.
Once again, Senate Republicans said no way. Nothing personal, they insisted. But they demanded that Obama curb some of the bureau’s powers before they would confirm anybody for the post — be it Cordray or St. Francis of Assisi.
So Obama did what presidents before him have done when faced with an obstructionist Senate: He named Cordray to the job by using a recess appointment, the very same procedure former President George W. Bush used in 2005 when he named John Bolton the U.S. ambassador to the United Nations.
Then earlier this year, a federal appeals court in Washington struck down as unconstitutional Obama’s use of three recess appointments to the National Labor Relations Board. As far as Republicans were concerned, that ruling covers Cordray at the consumer agency, chosen the same day as the NLRB trio.
That led to the theater of the absurd on Capitol Hill last week. House Financial Services Committee Chairman Jeb Hensarling, R-Texas, refused to allow Cordray to testify before his committee because Cordray “invalidly holds” the position of director.
To a lawyer familiar with the NLRB case, House Republicans have turned the law of the land upside down. To begin with, the lawyer pointed out, Cordray’s name was not involved in the NLRB case. True, the president used the same recess appointment for Cordray and the NLRB, but to the best of my knowledge nobody has yet filed and won a legal challenge against Cordray.
Second, the lawyer said, the president believes Cordray is legally holding his job, a majority of the Senate believes he is legally holding his job, and Cordray believes he is legally holding his job.
And finally, the U.S. Supreme Court probably will decide on recess appointments. The Obama administration has appealed the lower court ruling, and it seems likely the justices will agree to hear the case — perhaps as early as the fall. Until the high court rules, however, only one federal appellate court has questioned the president’s recess-appointment power.
The latest National Journal poll shows that 17 percent of Americans approve of the job Congress is doing, which is what you expect of Al Capone or the neighborhood grave robber. There is a message here to members of Congress: When you are in a hole, stop digging.
Torry is the chief of the Columbus Dispatch Washington bureau. He can be reached at firstname.lastname@example.org.