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Elizabeth Warren and the government's talent crisis

Elizabeth Warren has a blog post* over at reassuring people that she's quite happy about her new job:

The President asked me, and I enthusiastically agreed, to serve as an Assistant to the President and Special Advisor to the Secretary of the Treasury on the Consumer Financial Protection Bureau. He has also asked me to take on the job to get the new CFPB started -- right now. The President and I are committed to the same vision on CFPB, and I am confident that I will have the tools I need to get the job done.

Alrighty then. Pretty much every report on Warren's appointment includes some anonymous friends explaining that Warren didn't want to sit through a year-long confirmation process that might well have with inaction -- and thus no job. Getting moving now was preferable, even if it means she doesn't have the actual powers of the office.

But though this might be the preferred outcome for Warren, it is a terrifying precedent for the government. The confirmation process is so desperately broken that top nominees who are already working in government prefer vague advisory positions. It's a pretty safe bet that potential nominees with good jobs in the private sector are declining consideration entirely. The number of people who want to give up their day jobs and spend a year in silent limbo when there's no promise of a position on the other side is not that large, and as word gets out that that's effectively what Senate confirmation means, the top talent that government will be able to attract for these positions will dwindle.

*As an aside, I remember starting a blog back in 2003, when no one knew what they were and the word struck most people as slang for a bodily excretion. Now, when you go to, the first option on the top left of the navigation bar is "Blog." The times, they have a-changed.

By Ezra Klein  |  September 17, 2010; 10:24 AM ET
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You know the process is broke when the likes of Senator Judd Gregg say, "This is an attempt by the administration once again to circumvent being responsible to the American public through the Congress."

Nice thoughts from the man who authored TARP for Bankers and gave little regard for the American Public picking up the bill.

Posted by: helpscoming012009 | September 17, 2010 11:17 AM | Report abuse

I remember returning from SXSW Interactive in the spring of 2003 and telling my graduate school professor of educational technology about blogs and he snickered at me and said "Blogs?" like it was some crazy thing I had made up. Now, he uses blogs as a learning tool in most of his classes. I have had to restrain myself from digressing to my middle school behavior and saying "See! Burn you!"

Posted by: ania8 | September 17, 2010 11:25 AM | Report abuse

On the other hand, we get a tax cheat for a Treasury Secretary, and almost get another one for HHS. And if you really want to know who bears responsibility for wrecking the confirmation process, look no further than Joe Biden's work on the Senate Judiciary Committee.

Posted by: bgmma50 | September 17, 2010 11:30 AM | Report abuse

I'm interested in moments where a word goes from being thought of as a portmanteau to a word in its own right. I remember explaining to people that a "blog" is "web log", sort of like an online diary except that it can cover any topic. Then at some point people stopped thinking of it as an internet analog for something they were familiar with in the real world and understood it as a distinct thing in and of itself. Very strange.

As with a lot of the procedural problems with the government, both sides are guilty of helping create this problem. Pointing fingers really doesn't get us anywhere. We should all just agree that the country should expect that when they elect a President that he'll be able to hire people to do the jobs within government without a confirmation nightmare. As I've said elsewhere, I think judicial nominees are a different sort of case because they are lifetime appointments. But both Republican and Democratic presidents should be able to have a government that can do the work the President sets out for them to do without worrying about staffing problems.

Posted by: MosBen | September 17, 2010 12:25 PM | Report abuse

Can one of you beltway types more familiar than I with our civic arrangements answer a question for me: can this "advisory" position of Warren's become the real deal via a recess appointment? In other words, in the intrasession recess, could Obama elevate her to actual head of the new agency? (which sould enable her to serve until the end of 2012, right?).

Posted by: Jasper999 | September 17, 2010 12:48 PM | Report abuse

My boy friend keeps telling me that the Democrats also stonewalled Bush's appointments just like the GOP is now. I do recall filibusters on judiciary appointments, but I don't recall this happening with other appointments. Am I forgetting something?

Posted by: kathrynsnyder | September 17, 2010 1:53 PM | Report abuse

Jasper: The Constitution, Article II Section 2, outlines the President's power to appoint judges, ambassadors, Cabinet Secretaries, and all public ministers. It says: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." So Obama could appoint Warren to the post, and that commission would continue until the end of the NEXT Senate, which would be in January 2013 when the winners of the 2012 election are sworn in.

Posted by: chredon | September 17, 2010 1:56 PM | Report abuse

Since the Senate won't or can't do the work it was elected to do, thanks to the Republicans, is there any recourse outside the ballot box the pubic can take?

I know this sounds naive, but can the Congress be sued to do its duty? Can injunctions be got to force performance such as cabinet or judiciary appointments?

The filibuster, for example, as used currently requiring 60 votes for cloture, can be looked at as a becoming a tactic that transgresses or denies the constitutional mandate of simple majority except for treaties, impeachment, overriding vetoes and amendment.

The Constitution grants the House and Senate the right to form their own rules of procedure. But when those rules prevent the carrying out of their constitutional duties, is there any means of redress available if they fail to correct their behavior?

Posted by: tomcammarata | September 17, 2010 1:58 PM | Report abuse

tomcammarata, I'd have to do research to give you a fuller answer, but I'm pretty sure that no, you have no recourse but the ballot box.

Posted by: MosBen | September 17, 2010 2:02 PM | Report abuse

A Congress with 60 Dem votes and some foresight could have made a whole lot of positions not subject to confirmation. Alternativley, we could make more top posts be civil service jobs, like the Brits' "permanent undersecretary for x". More likely now that the GOP, when/if it ever gets 60 votes, will do just that.

And yes, the Dems were much more accommodating in confiorming Bush's appointees. Only a handful of judges didn't get through, plus John Bolton at the UN (and he got recess appointed), maybe one or 2 others.

Posted by: Mimikatz | September 17, 2010 2:10 PM | Report abuse

Kathryn: The Democrats did hold up confirmation on some of Bush's appontments, such as Bolton for the Ambassador to the UN. But they help up appointments on nominees who they considered too out-of-the-mainstream for the position. In the end, almost all of Bush's appointments were enacted. The current GOP is holding up almost all of Obama's appointments, for no reason other than wanting to hold them up, I suppose. It's a no-win situation for Obama. If he makes recess appointments, Fox News will shout about how he's circumventing the Constitution (even though the Constitution has rules for circumventing the Senate in this case), and if he doesn't make recess appointments, all those positions will go unfilled for another two years. There are currently over 400 acts that have passed the House, many with overwhelming GOP support, that are being held up in the Senate by filibuster threats or secret holds.

Posted by: chredon | September 17, 2010 2:14 PM | Report abuse

Obama appointments being held up at 5 TIMES the rate of Bush's.

Posted by: michaelh81 | September 17, 2010 2:31 PM | Report abuse

MosBen: Tom's question is exactly what the GOP was talking about with the Nuclear Option back in 2004 - a re-reading of the Constitution and Senate rules that would do away with filibusters. It is based on the idea that the Constitution outlines the specific times when a supermajority is needed, and that no Senate rule should force a supermajority requirement when none is called for by the Constitution. The problem is Senate Rule 22, which states that the rules governing the Senate can only be revised by a 2/3rds vote. Thus, any time there are enough Senators to hold a filibuster, there are also enough to prevent the rules from being changed. However, many people (including a Supreme Court ruling in 1982) believe that it should only take a majority vote to change the Senate rules and that one Senate should not be able to set up rules that prevent future Senates from changing them. This option was also proposed by Woodrow Wilson in 1912, by then-VP Richard Nixon in 1957, and by Senators Hubert Humphrey, Nelson Rockefeller, Clinton Anderson, George McGovern, and Frank Church. In fact, Senator Robert Byrd actually used it to change Senate rules four times. So yes, there IS precedent, it it could be determined legal to change Senate rules so that only a simple majority is needed to change Senate rules, then on the basis of that, change the rules to end filibusters entirely. But neither side will do it, since they both want the power to filibuster when the other side is in the majority. They would rather be hamstrung themselves than to give away the authority to hamstring the opposition.

Posted by: chredon | September 17, 2010 2:33 PM | Report abuse

"My boy friend keeps telling me that the Democrats also stonewalled Bush's appointments just like the GOP is now. I do recall filibusters on judiciary appointments, but I don't recall this happening with other appointments."

Also wondering if it happened more or less frequently after GWB reportedly helped to nudge out Lott.

Posted by: tuber | September 17, 2010 2:38 PM | Report abuse

chredon: Thank you. That's what I thought. I only asked the question because a lot of people are bemoaning this appointment because Warren will lack formal authority and power as bureau head. But, there's no reason she can't have that authority starting in, oh, about three months.

This way, she just gets a head start, is all, and will lack formal authority just for a short while. It's true her recess appointment, should it come, will only last a couple of years, but, given the typical brevity of a lot of executive branch position tenures (ie., Orzag, Romer, Emanuel, etc.), I doubt that will make much of a difference. And, in the off chance she ends up doing a bang-up job and is highly popular (and Obama wins a second term and wants her to stay on), the GOP will pay a high political price for trying to oppose her in 2013.

Posted by: Jasper999 | September 17, 2010 2:41 PM | Report abuse

For comparison purposes, only about 20-30 of Bush's judges got stalled during his eight years of office.

In contrast, the number of judges nominated by Obama that have been held up already number in the hundreds in just under 2 years.

As for appointment positions in gov't, Bolton is the only one that comes to mind that ran into problems but there were probably a few others in high profile positions.

Again, in contrast, in the Obama administration, entire agencies are struggling because routine appointees haven't been voted on because Republicans have signaled their intention to force a cloture vote on every single nominee, even the ones with nearly uniamous support. It's a problem because it shuts down the Senate for 3 days and there's not enough time to wait 3 days for every single nominee.

Posted by: lol-lol | September 17, 2010 2:55 PM | Report abuse

credon, I read the comment as asking what individual voters could do (i.e., sue Congress). I'm pretty sure there are no legal remedies to "make Congress do its job", though you're right that there are theoretically things that legislators could do to futz with the rules.

Posted by: MosBen | September 17, 2010 4:49 PM | Report abuse

The emotion over this not-quite-appointment is yet another example of this country's insistence on grossly misinterpreting Obama's centrism.

Posted by: decentateverything | September 17, 2010 6:49 PM | Report abuse

Whatever else can be said about this White House, it isn't afraid to poke a stick in the eye of its critics. How else to explain President Obama's decision Friday to put Elizabeth Warren in charge of the new Consumer Financial Protection Bureau while avoiding Senate confirmation and, for that matter, any political supervision.

The chutzpah here is something to behold. The pride of Harvard Law School, Ms. Warren is a hero to the political left for proposing a new bureaucracy to micromanage the services that banks can offer consumers. But she is also so politically controversial that no less a liberal lion than Connecticut Senator Chris Dodd has warned the White House that she probably isn't confirmable. A President with more political and Constitutional scruple would have nominated someone else. Mr. Obama's choice is to appoint her anyway and dare the Senate to do something about it.

Though her mandate goes beyond banks, the banking system is likely to suffer the most damage. Ms. Warren was a vociferous opponent of allowing regulators charged with maintaining the safety and soundness of banks to control this new bureau. No matter how destructive its new rules may be, they can only be rescinded by a two-thirds vote of the Administration's new Financial Stability Oversight Council.

And the bureau will now be staffed and shaped by an "assistant" with no obligation to appear before the Senate. The possibility that an appointed official could hold significant authority is why the framers wrote the Senate into the process of approving the President's senior hires. Article II, Section 2 of the Constitution says the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Officers of the United States."

Article II, Section 2 also says "Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone," but Congress explicitly did not view the head of the financial consumer bureau as an inferior officer. On July 21, Mr. Obama signed a bill passed by both Houses stating that the "Director shall be appointed by the President, by and with the advice and consent of the Senate."

We have here another end-run around Constitutional niceties so Team Obama can invest huge authority in an unelected official who is unable to withstand a public vetting. So a bureau inside an agency (the Fed) that it doesn't report to, with a budget not subject to Congressional control, now gets a leader not subject to Senate confirmation. If Dick Cheney had tried this, he'd have been accused of staging a coup.

Posted by: kohnfjerry | September 18, 2010 2:01 AM | Report abuse

*****We have here another end-run around Constitutional niceties so Team Obama can invest huge authority in an unelected official******

kohnfjerry: False. Warren will not have "huge authority" unless she at some point is made bureau head via Senate confirmation or recess appointment. Her role is purely as a consultant at this point. You're just sore because the administration has found a method of dealing with GOP obstructionism. The constitution is an instruction manual for how to run the government. It's not a law of physics. Nor is it a suicide pact: If the executive branch simply can't adequately staff the government due to abuse of the "advice and consent" clause, the nation's business cannot get done, and the welfare of the the country is damaged. So it's therefore a good thing in my view when the White House begins to fight fire with fire.

Posted by: Jasper999 | September 18, 2010 11:17 AM | Report abuse

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