Law professor: Cordray appointment could affect judicial nominees

Jessica M. Karmasek Jan. 23, 2012, 9:30am





RICHMOND, Va. (Legal Newsline) - A University of Richmond law school professor says a controversial decision by President Barack Obama earlier this month could affect how quickly some judicial nominees will be voted on by the full Senate.

On Jan. 4, Obama announced a recess appointment of former Ohio Attorney General Richard Cordray to the post of director of the U.S. Consumer Financial Protection Bureau.

The CFPB was created by the Dodd-Frank regulatory overhaul and is tasked with regulating consumer financial products.

Democrats, including Obama, argued Republicans were "stonewalling" Cordray's nomination.

Carl Tobias, the Williams Professor of Law at University of Richmond's law school, said the president's move could have ramifications for Berkeley Circuit Judge Gina Groh and West Virginia attorney Stephanie Thacker's nominations, among others.

Groh was nominated by Obama to the U.S. District Court for the Northern District of West Virginia in May to fill the vacancy left by the 2006 death of Judge Craig Broadwater.

Thacker was nominated by the president in September to serve as a judge on the U.S. Court of Appeals for the Fourth Circuit. Thacker would replace Judge M. Blane Michael, who died earlier this year. Michael had held the position since 1993.

The U.S. Senate Judiciary Committee voted in October to approve Groh to the federal court and in November approved Thacker's nomination to the federal appeals court.

Both must now be confirmed by the full Senate.

Tobias, who said in December Groh and Thacker's nominations would most likely receive a vote by the Senate before the end of this month, said Friday that timeline will probably change given the events leading up to Cordray's appointment and the appointment itself.

He said Senate Minority Leader Mitch McConnell demanded Obama not recess appoint anyone, especially Cordray.

McConnell said he didn't have sufficient assurances from the president, therefore he held up all judicial nominees, Tobias explained.

"Traditionally, they at least approve some before they recess," the law professor said. "But they voted on none."

On top of that, Obama went ahead and appointed Cordray.

Tobias said the question is now, how will it all play back for those judicial nominees, including Groh and Thacker, waiting for a vote?

"We'll have to see," he said. "There have been threats from U.S. Sen. (Chuck) Grassley (R-Iowa, who is the ranking member of the Senate Judiciary Committee) to hold up Obama's nominations.

"The issue really is, what will the GOP do when the Senate comes back on Monday? We'll know more when things play out next week."

He added, "When the Senate begins to schedule other nominees, and how often, that's when we'll really know something."

Given that more district court nominees are voted on than appellate court nominees, Tobias said it's "easier to predict" that Groh will likely get a vote before Thacker. Still, he said he's not certain.

"Only one person, if you go in order, is ahead of Thacker," he explained. "Once he gets a vote, it seems to me she would be the next up. But this is all, again, contingent on the GOP and what they'll do.

"I think Groh is very close to the top of the district nominees. I'm pretty certain she'll get a vote in February -- that is, unless (the GOP) shuts down the whole process."

Tobias said if that's the case, Senate Majority Leader Harry Reid, D-Nevada, will most likely move for cloture, or ending a filibuster.

"They would need 60 votes to force it and some of those are GOP votes," the law professor explained.

"Obviously, the preferable way is to have cooperation -- especially since Groh and Thacker's nominations aren't at all controversial."

Still, Tobias said he's "very optimistic" that the two will be confirmed. "The question is just when," he said.

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