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Published: 7/19/2013 - Updated: 9 months ago

Sen. McCain, power broker

McCain McCain
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Former Ohio attorney general Richard Cordray finally was confirmed by the U.S. Senate this week to head the federal Consumer Financial Protection Bureau. Majority Senate Democrats hailed the vote as a great victory, because it seemed to end an impasse on presidential appointments and obstructionist filibusters by minority Republicans.

President Obama will get votes on most of his nominees who were being held up. And the filibuster to block debate will not be eliminated for executive appointments — a change Senate Majority Leader Harry Reid (D., Nev.) had threatened.

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It seems like a compromise. But Mr. Cordray waited two years for his vote. He shouldn’t have had to wait at all.

The “nuclear option” of partially eliminating the filibuster is still on the table. But so is its use, or the threat of its use, by Republicans to block the President’s appointments. Some resolution.

Under a deal brokered by Sen. John McCain (R., Ariz.), the President and Mr. Reid are getting confirmation votes on the major nominees who have been in limbo — Mr. Cordray, as well as the nominees for secretary of Labor, administrator of the Environmental Protection Agency, president of the Export-Import Bank, and one member of the National Labor Relations Board (NLRB).

In return, President Obama will withdraw two NLRB appointments he made while the Senate was in recess. Republicans agreed to swift confirmation votes on his two new appointees.

Mr. Reid insists he was ready to change Senate rules to require a simple majority of 51 Senate votes — not the current super-majority of 60 votes — to end filibusters. That would have ended the tyranny of the Senate GOP minority, but it also would have created much hard feeling on Capitol Hill.

Still, it would have been better if Mr. Reid finally had invoked the nuclear option. The filibuster was never meant to be a tool for the minority to shut down the majority, much less the entire executive branch. The routine abuse of the filibuster by Senate Minority Leader Mitch McConnell (R., Ky.) is unprecedented.

Critics of the “you’re another” school note that Senate Democrats threatened to filibuster to hold up judicial confirmations during the presidency of George W. Bush, when they were in the minority. Those threats were based on the poor qualification of many of the nominees.

No one ever disputed Mr. Cordray’s qualifications. Republicans acknowledged that he was a stellar nominee. Moreover, judges serve for life. Executive appointments are for a few years.

If you set aside tradition, the filibuster is a dubious instrument. It is not part of the Constitution. Some constitutional scholars think it is clearly unconstitutional. Even if it is not abolished, it should not be indiscriminately applied to presidential appointments.

There are two areas of political fallout from the filibuster drama. One is that now that Mr. Cordray has been confirmed, he likely will not run for governor of Ohio next year, which is too bad for the state’s Democratic Party.

The other is that Senator McCain and his band of five to 10 Republican Senate moderates (depending on the issue) will continue to play a pivotal role on immigration reform, gun legislation, and the next round of budget and tax fights. He is now the third leader of the Senate.



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