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Appoint and Nominate: How to Fill the Vacancy Atop the CFPB

Last week, I published an op-ed in the Washington Post suggesting an “appoint and nominate”  method by which President Obama could make a recess appointment of Elizabeth Warren to the Consumer Financial Protection Bureau, while still respecting the Senate’s confirmation process. I suggested that the president “should make a recess appointment of Elizabeth Warren and simultaneously nominate Sarah Raskin for the same position”:

While traditional recess appointments usurp the Senate’s advise-and-consent role, the “appoint and nominate” strategy would empower the Senate to end the recess appointment as soon as it wanted. Warren would, in effect, serve at the pleasure of the Senate.
Senate Republicans could still refuse to confirm any nominee until there was a structural overhaul of the bureau. But they could no longer use the threat of an emasculated agency to achieve that end.
To make clear that the president has the power to nominate (and that Warren would serve only until her successor was confirmed), Warren, at the time of her appointment, should send Obama a letter. Just as Justice Sandra Day O’Connor sent President George W. Bush a letter resigning “effective on the nomination and confirmation of my successor,” Warren could resign conditional on the confirmation of her successor.
This constitutional three-step — a recess appointment, followed almost simultaneously by an O’Connor letter, followed almost simultaneously by a nomination — would ensure that the bureau has a director at its helm on July 21 and preserve the Senate’s advise-and-consent role.

Robert Kuttner at The American Prospect thinks the idea is “well-meaning but wrongheaded”:

Raskin is one of two real progressives on the Fed, the other being Daniel Tarullo. Both are needed there. If Raskin, formerly a pro-consumer state bank regulator in Maryland, were to leave, the Republicans would block anyone to the left of Milton Friedman. They just refused to confirm Nobel laureate Peter Diamond of MIT, a thoroughly mainstream economist.
Secondly, it’s a bad idea because it would make Warren an instant lame duck. Ayres is naïve to think that just because Raskin has been confirmed for the Fed job, “It would be hard for Republican senators to argue that Raskin, as a recently confirmed Federal Reserve governor, is a bad-faith nominee.” This imputes far more rationality and fair play to the Senate Republicans than the evidence warrants.

Even though Kuttner describes me as naïve, his criticisms fail to take on political reality. Like him, I wish Warren could be confirmed as the first CFPB Director. But that is unlikely. While Raskin can do important work as a minority-voice at the Federal Reserve, it is much more important to have an effective director at the CFPB as it comes into being.
Moreover, Kuttner fails to consider how the “appoint and nominate” strategy could be used with other people. My op-ed specifically suggested nominating Raskin as Warren’s successor, but President Obama could choose to nominate any of a number of alternative good-faith candidates for the directorship. To be sure, Republican senators could always try to subvert the strategy by claiming that a particular nominee was unqualified. But it’s harder to make the case with a nominee who has recently been approved for an important position.
The “appoint and nominate” approach represents a new way for the president to fill important vacancies without derogating the powers of the Senate. Making a recess appointment of Nobel-prize laureate Peter Diamond for the Federal Reserve has a different meaning if the Senate can dis-appoint him at anytime by confirming his successor.
Anne Joseph O’Connell estimates that since Jimmy Carter’s presidency, Senate-confirmable positions have had to operate without confirmed officials occupying them “one-quarter of the time.”  “Appoint and nominate” would give presidents a new tool to fill the most needful positions.  And the professoriate is a ready-made class of highly trained temporary workers who can easily take short-term leaves to serve their country.
[A great topic for a political science dissertation chapter would be to model the “appoint and nominate” equilibrium.  Under what circumstances, would the president nominate a compromise candidate? Could it ever make sense for the president to make a recess appointment to the left of his/her own preferences to induce faster Senate confirmation of a successor? Or would a president ever nominate an unpalatable successor, to deter the recess appointee from being displaced?]
Senator Warren?
Kuttner also worries that the “appoint and nominate” strategy might backfire by limiting Elizabeth Warren’s ability to pursue a Senate run:

A bank shot that places Warren temporarily at the bureau undercuts the possibility of her making the senate run, then displaces her from the bureau as well. This is too clever by half—and would leave one of America’s most valuable public servants to go back to her day job at Harvard Law School. A sweet job to be sure, but she has more important things to do.

Here, I share some of Kuttner’s concerns. Senate Republicans might act strategically and keep Warren in the position just long enough so that she could not effectively run for Scott Brown’s Senate seat. But this is a risky game for Republicans to play. Warren might serve the Bureau for six or seven months and still have time to jump into the Senate race – even without a successor being confirmed. During her first 200 days, a Director Warren could promulgate dozens of needful regulations and in the process increase her street cred back home as an effective lawmaker. It would almost be worth the risk just to see how Senator Brown would vote on a nomination that might impact his own job security.
Will There Be a (Sufficient) July 4th Recess?
As I said in my op-ed, “the president can make recess appointments only if there is a recess.” Behind the scenes, both parties are feverishly maneuvering with the impending Independence Day holiday looming. There is considerable constitutional uncertainty about what constitutes a sufficient recess for a president to make a recess appointment. You can learn more about this issue here (“Although President Theodore Roosevelt once made recess appointments during an inter-session recess of less than one day, the shortest recess during which appointments have been made during the past 20 years was 10 days.”)  and here (“The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause.”).  I will leave to others what is constitutionally and procedurally possible.  But the prospect of a Senate-fireable recess appoint gives Senate Majority Leader Harry Reid a new reason to push for an adjournment that gives his president this option.
[Let me again disclose: I have discussed with Warren and her staff the possibility of working for the bureau — but I have not discussed this strategy with her or anyone at the agency.]