“We’re not here today to debate Mr. Cordray’s appointment,” he said. Except for the next two hours, his colleagues across the aisle did just that, pounding home their objections to Cordray’s Jan. 4 recess appointment by President Barack Obama while the Senate was in pro forma recess.
“If we accept the premise of your validity in this position, we accept the premise that our ability to offer advice and consent basically disappears,” Sen. Mike Johanns (R-Neb.) told Cordray. “The president decides if we’re in recess or not,” he said, and can “appoint anyone he wants.”
Richard Shelby (R-Ala.) predicted that “the Supreme Court will ultimately decide the constitutionality” of the appointment, and reiterated his opposition to Cordray’s “unfettered power over the bureau. If he so chooses, he need not answer to anyone.”
Bob Corker (R-Tenn.) agreed that there was “no question there will be a constitutional challenge” to the appointment, one that “may rise to the level of the highest court of the land.”
This legal uncertainty over Cordray’s appointment, he added, is a drag on financial markets that crave predictability.
Johanns of Nebraska pointed to a 1989 case in U.S. District Court for the District of Columbia where Olympic Federal Savings & Loan Association successfully challenged the appointment of the first director of the Office of Thrift Supervision as unconstitutional.
“I can’t imagine anyone could maintain based on the circumstances your appointment is valid,” Johanns said, and asked whether all of Cordray’s actions as director will subsequently be invalidated.
Cordray responded that he didn’t believe the Olympic case “was clear-cut one way or the other” (the circumstances of the thrift director’s appointment were different, involving a grandfather clause in the legislation).
“I have been appointed as director….I now have legal obligations,” Cordray said. “We will continue to walk ahead one step at a time.”
The line of questions from Republicans drew the ire of Sherrod Brown (D-Ohio). “I can’t believe we’re still having this debate,” he said. “It’s an inside baseball game the country simply doesn’t care about.”
The reason Cordray got a recess appointment, he reminded his colleagues, was because 44 of them signed a letter refusing to consider any nominee unless the CFPB was restructured. “Is that the way we’re going to operate this place? We’re not going to confirm someone because we don’t like the agency?”
Still, Charles Schumer (D-N.Y.) noted that Republicans had considered boycotting the hearing altogether. That some members showed up “means my colleagues have dialed down their opposition,” he said. “It makes no sense for senators to be AWOL” on consumer financial protection.
Contact Jenna Greene at email@example.com.