When Blocking Nominees Comes Back to Haunt Politicians

About the time Alabama Republican Jeff Sessions was lacing into the Senate's Gang of Eight immigration reform package and offering dozens of amendments in committee, some Democrats may have been ruing the day their party helped deep-six his appointment to a federal court. Republicans could be forgiven for having similar regrets when Elizabeth Warren won a Senate seat after they had successfully headed off any chance for her to lead the Consumer Financial Protection Bureau.

When it comes to blocking nominations, sometimes partisans might want to be careful what they wish for. The fate of Richard Cordray, who has the job Warren didn't get, is likely at stake this month and could turn into another example of unintended consequences. If the GOP continues to block permanent status for him, his possible alternatives include challenging Ohio Gov. John Kasich or succeeding U.S. Attorney General Eric Holder. Donald Berwick, whom Republicans refused to confirm as permanent head of the massive agency that runs Medicare and Medicaid, is already running for governor of Massachusetts. He says he wants to make the state a model for jobs, education and cost-effective health care.

Sessions was elected to the Senate in 1996, a decade after eight Democrats and liberal Republicans Arlen Specter and Charles "Mac" Mathias voted 10-8 in the Judiciary Committee to kill his nomination by President Reagan as a district judge. Their rationale at the time had to do with accusations of racial insensitivity against Sessions, based in part on sworn statements in which he called the NAACP and the American Civil Liberties Union "un-American" and "communist inspired."

Now, from his perches as senior Republican on the Senate Budget Committee and third-ranking on Judiciary, the very committee that dashed his ambitions in 1986, Sessions has been a leading voice against immigration reform, the Affordable Care Act, and spending on safety net programs. He has attacked the immigration bill on populist grounds (it will hurt low-wage American workers) and moral ones (we shouldn't give illegal immigrants amnesty and access to all the benefits of legal citizens). He also took umbrage at the Gang of Eight process. "Somebody needs to ask questions about this bill," he said on CNN. "They don't get to write a bill in secret, and we all roll over and have it passed without examination." The bill passed the Senate, but Sessions' critiques previewed the storm awaiting reform proposals in the House.

Warren was an unsparing critic of the financial industry as chairwoman of the Congressional Oversight Panel on TARP. She proposed the idea of the consumer bureau and set it up when it was first created, as part of the Dodd–Frank Wall Street Reform and Consumer Protection Act of 2010. But she was such a lightning rod and so unlikely to be confirmed that President Obama did not nominate her to be its inaugural director. That catapulted her into a Senate race, which she won despite a deluge of banking and financial industry contributions for then-Sen. Scott Brown, R-Mass. The next battle was to keep Warren off the Senate Banking Committee. Wall Street lost that one, too.

The GOP and Wall Street "victory" in keeping Warren off the CFPB seems awfully pyrrhic at this point. Her six-year term guarantees her a Senate platform through 2018, she's probably a lock for reelection in her blue state, and some Democrats even see her as a potential presidential candidate. Warren has already made headlines twice for going after regulators she views as too soft on banks. Settlements are fine, she told them at a hearing in February, but oversight agencies have "a lot less leverage" if they never take banks to trial for breaking the law.

Cordray is caught in an increasingly tangled web of complications. Republicans have refused to confirm any CFPB director until the structure of the new agency is changed, while Democrats have refused so far to make any changes. Another layer of uncertainty was added last month when the Supreme Court said it would hear arguments on the constitutionality of appointments presidents make when Congress is in recess. Such appointments don't require confirmation, but are temporary.

Obama installed Cordray as a recess appointment when Republicans blocked his initial nomination in 2011, and renominated him this year. A vote is likely this month, possibly accompanied by a showdown over whether to preserve the filibuster in its current form. Unless Cordray is confirmed, he'd have to leave his job at the end of the year.

At least two future paths for Cordray involve promotions. Some Ohio insiders say the former Ohio attorney general is a possible successor to Holder, who has said he will not be staying for Obama's entire second term. Cordray is also a liberal favorite for governor, based on his policies and victories in statewide races for treasurer and attorney general. He hasn't made moves toward running, but he hasn't ruled it out, either. Kasich achieved a career high of 54 percent approval in a Quinnipiac Poll taken June 18-23, but may have become more vulnerable after signing a controversial budget June 30 that tightens restrictions on abortion and cuts funding for Planned Parenthood.

Berwick is a pediatrician and a longtime health-care innovator who was president and CEO of the Institute for Healthcare Improvement for nearly 20 years. He says he received his education in politics in Washington, when Republicans – accusing him of favoring health-care rationing, which he vehemently denies -- twice refused to confirm him as administrator of the Centers for Medicare and Medicaid Services. Obama gave him a recess appointment to run the half-million-worker agency with an $820 billion budget, but he had to leave in 2011 when the temporary appointment expired. As Berwick told a Fox interviewer last month in Boston, "I've been in the cauldron."

Berwick's gubernatorial odds are long; his Democratic primary opponents could eventually include members of Congress and state attorney general Martha Coakley, and Republicans have strong potential contenders in Brown, recent Senate candidate Gabriel Gomez and former health care CEO Charles Baker, who lost a race for governor in 2010.

But if Berwick were to become governor, he says he'd make sure his state sets a good example for others trying to achieve seamless and less expensive health coverage. "Massachusetts is four to five years ahead of the country," Berwick said on Fox, referring to the state's 2006 law that provided the template for "Obamacare." "We have to succeed in health care reform in this state or there are consequences…"

Failure would feed into Republican assertions that Obamacare is a recipe for soaring health costs and dampened economic growth. They could not have foreseen the unlikely entry into politics of a candidate determined and uniquely qualified to prove them wrong.