Saturday, July 24, 2010

Why the fear about confirming Elizabeth Warren?

Sandy Levinson

The conventional wisdom has become that Elizabeth Warren would, of course, be a fine appointee to head the new Consumer Protection Agency, but, as Sen. Christopher Dodd has said, she might have trouble being confirmed (which therefore licenses the Obama Administration to be thoroughly cowardly and abandon Prof. Warren). But what, precisely, suggests that she couldn't be confirmed?

Yes, every running-dog lackey of Wall Street would oppose her, but are there in fact 41 senators who would publicly take on such a role? To be sure, one can assume that most of the Republicans would oppose her, but does "most" mean "all"? Consider, e.g., Scott Brown, who, by all accounts, would like to be re-elected in 2012. Is he really going to vote against the charistmatic Harvard Professor selected by the Boston Globe last year as "person of the year"? I don't see voting against her as a good career move for an ambitious incumbent Republican senator in Massachusetts. Indeed, although so far Prof. Warren seems to be rebuffing the pleas of many that she run for the Senate herself in 2012, I wonder if she might actually succumb to these pleas if she is deprived of a chance to serve by a 59-41 vote in which Scott Brown is the executioner. Then there are the two senators from Maine, who also have to worry about their own political futures (and in fact have tried to distance themselves from their mad-dog colleagues). So, assuming she gets all 59 Democratic votes, that gives her a cushion of two votes, which means that the egregious Senators Nelson and Lieberman could vote against her and she'd still be all right. But, frankly, I'd be shocked if Lieberman, who certainly wants to be re-elected in 2012, would dare vote against Professor Warren. I'm also assuming that Blanche Lincoln, who criticized the bill for not being tough enough (on derivatives) would vote to confirm. And, who knows. outgoing Republican Senator George Voinovich, from Ohio, who is quite different in temperatment from his mad-dog colleagues, might actually choose to do the right thing and vote to confirm as his valedictory.

As anyone who follows my postings knows, I basically despise the Senate. But in this case, it is not the arcane and indefensible practices of the Senate that will explain any failure to nominate her. If Obama fails to nominate Prof. Warren, it will have nothing to do with bona fide concerns about confirmation; rather it will be a craven capitulation to running-dog Democratic senators who cannot, of course, afford to oppose her in public, but will tell Obama that she's just too "strident" to take this office. This is truly a defining moment for the Obama presidency (and for Democratic senators themselves).


It took me a few minutes because the name was ringing a bell. Then I Googled her.

Her appearances on TDS with Jon Stewart are priceless. While I don't necessarily agree with every word she speaks, she's a fine fine fine fine nominee.

The only reason I'd see her getting shot down is her mouth -- which would truly be a shame. She never pulls her punches -- even when it appears she's done so, her facial expression always makes clear what she's thinking.

This, I believe, is one the few times I've agreed with Sandy Levinson -- not only on the quality of the nominee, but the run down of the Senate as well.

Good Show.

While Sandy Levinson may be a single-issue voter on Elizabeth Warren, I find it hard to believe that even one senator will lose his (or her) job over a refusal to vote for cloture on her possible nomination.

Running dog senators?


Sandy, were you wearing your Mao jacket when you typed that one?

In any case, the confirmation process is not as easy as you think. The GOP can delay any new Obama nominee into the next Senate, when they will have more than enough votes to sustain a filibuster without Brown, Collins and Snowe, if not a majority to defeat a nominee outright.

The President may want to find his telephone and introduce himself to the opposing party. The only way he gets anything through Congress after November is to stop trying to rule through decree and start negotiating compromises.

I’ll stand corrected if I’m wrong, but do not the fiscally irresponsible Bush Era “tax cuts for the wealthy” expire at the end of the year?

Given that the uber-rich are in fact a minority of the electors (even if they can use their money for election propaganda), surely the strategy for a Democratic Administration with some guts might be:

(i) to introduce before the fall elections legislation providing permanent tax reductions for those earning under, say, $150K per year or $200k for a couple; but let the taxes on incomes above, say, $350k, on dividends, on capital gains and on estates all revert to at least their previous levels; and

(ii) to appoint Professor Warren (if need be by recess appointment) and provide her with the means aggressively to put an end to the practices by which profits are gouged out of the poor.

The NYT has an editorial this morning Elizabeth Warren which ends with this telling observation:

”The banks don’t oppose Ms. Warren because she doesn’t get it. They oppose her because she does.”

I’m quite sure it would be possible for the Administration to think up some measures which could come into effect or at least be announced before the elections.

For example, could not existing mortgage interest rates and fees not be made subject to a top end cap for loans up to a certain value? Whether in arrears or not. Ditto consumer loan interest charges and fees? Why should banks charge the poorest for the provision of basic banking service?

Paul Krugman’s op-ed also in the NYT: Addicted to Bush points out what the GOP agenda really is.

The fact that poor dear Bart opines that after the fall elections the GOP will be able to filibuster a Warren (or just about any other) nomination is a telling indication that this is the time for some recess appointments. We know about dear Bart’s “soak the poor” agenda from other threads.

Perhaps the President should not be picking up the telephone to the GOP as dear Bart disingenuously suggests but picking up the megaphone to talk to the voters.


The fact that poor dear Bart opines that after the fall elections the GOP will be able to filibuster a Warren (or just about any other) nomination is a telling indication that this is the time for some recess appointments.

I fully expect this. While he can be forced into accepting less than he wants, Obama would not know a compromise if it hit him on the side of the head.

Perhaps the President should not be picking up the telephone to the GOP as dear Bart disingenuously suggests but picking up the megaphone to talk to the voters.

Obama never stopped his campaign. The problem is that the voters know his true policies now and do not like them. Think the UK's recent rejection of Labor with the added voter anger at the Dems for lying to them in 2006 and 2008 about how they intended to govern.

Our yodeler, whom I have compared to the snakes at Boston's Franklin Park Zoo lacking a pit to hiss in, does not vote his own pocketbook. Rather, he's a wanna-be Glenn or Rush, hoping his work of friction puts him in the top 1-2% income category, to escape the mundane inhaling of his DUI clients' fumes with his Woodland head above the clouds. Our yodeler is a mere lemming and a NOAGN*.

As to our yodeler's reference to Labor's recent rejection in the UK, he perhaps sweeps under the carpet the role of poodle Blair pre-Brown with Bush/Cheney; and of course, our yodeler neglects the role of the Liberal Party in the rejection of Labor. But that's apples and oranges.

Our yodeler is merely repetitive of the Republican Pied Piper talking points.


Thanks to Professor Pasquale, I've been made aware that Warren's appointment might have an effect on the health care "Death Panels", so I have to factor that in on my thinking about her appointment.

Let me just say for the record that I'd rather have Warren than, just to throw out some names, Bybee or even Goldsmith, in such a position.

There's two basic reasons why Warren will be opposed by the GOP:

1. Mindless opposition is their default position on all legislation and appointments, unless, as in the case of Petraeus, the appointment represents complete and abject surrender (or see reason 2, below). As you may infer, I think the idea is beyond laughable that Obama should pursue "compromise" with the practitioners of scorched-earth politics, namely the current GOP. It would be just as useful and produce roughly comparable results to the attempts of Rome to "compromise" with the Visigoths.

2. If there is to be an appointee to such a position, with the possibility of doing actual good for a wide swath of the electorate, they see this is directly threatening them, both by making that electorate happy and also by lending an air of utility to the concept of government, both of which they are terminally allergic to.

Which, if you think about it, says something about why they were fine with Petraeus and utterly opposed to Johnson, et al.

I see that poor dear Bart is again posting from Νεφελοκοκκυγία. Our would-be Pisthetaerus does not, however, have the benefit of having his lines written for him by Aristophanes.

Labour, my dear Bart, lost the recent election, first and foremost because they had been in power for three terms. It is our experience that by that stage any governing party has lost touch with reality and needs to be kicked out of office so that it may rediscover how ordinary people live. Ministers get to enjoy the trappings of office a bit too much.

We had exactly the same phenomenon with Thatcher. Indeed, when the Mint started to produce a £1 coin, it was immediately dubbed “a Thatcher” because it was “a bit brassy and thinks it’s a sovereign.”

Secondly, the Conservative Party has been improved by its time in opposition and has rediscovered the concept of “one Nation Toryism” rejected by Thatcher. That is why the Liberal Democrats support it in the coalition. In the latest budget we have tax cuts for the poorest and tax increases for the better off. In particular, capital gains tax is raised from 18% to 28% which is something the Obama Administration might do well to look at.

It seems to me that the GOP has not been out of power for anything like long enough to rediscover how ordinary people live, if, indeed, it ever could. The GOP is still essentially the party of ”Billionaires for Bush”. Karl Rove’s 527 group ”American Crossroads”, while masquerading as a ”grassroots” campaign, obtained 97% of its funding from just 4 billionaires 3 of them Texas based and 2 of them in the same oil and gas industry which provided much of the funding to generate support for the invasion of Iraq (which just happens to have the 2nd largest proven reserves of oil and gas in the world).

And speaking of Νεφελοκοκκυγία, what is going on in Colorado? First Scott McInnis implodes, then Tancredo threatens to run on the ACP ticket and now there’s a similar threat in CD4. If this is the Tea Party at work, then the connection of our would-be Pisthetaerus with the Phasis River is all the more apposite.

It's possible that appointing Petraeus was an abject capitulation--I'm certainly no fan of the Administration's Afghanistan "policy." But it's also possible that the appointment was the product as well of a cold calculation that this is the best way to fend off a 2012 candidacy by possibly the only Republican who might be a plausible threat to Obama's re-election (unless, of course, the Administration fears a "stab in the back" campaign and therefore continues to pour more good many and lives after our already bloated investment in Afghanistant).

A reply to this post over here applies a different perspective. SL's post is getting some attention -- Volokh Conspiracy also referenced it, having its thoughts on the issue overall as well.


On the post you link to Paul Horowitz says:-

Of course, focusing on Warren as an individual figure makes more sense if our goal is not one of overall public policy but of politics and rhetoric...

Rhetoric is often vital to the achievement of public policy.

FDR had that gift in spades. So did Sir Winston Churchill. So does Elizabeth Warren.

The new agency needs to be headed by someone who can use the bully pulpit.

As this CNN report makes clear, Elizabeth Warren is a highly effective communicator. Elizabeth Warren warmly embraced at Netroots.

Mind you, that was abundantly clear from her activity chairing the Congressional Oversight Panel for TARP. She often came across as the only person genuinely on the side of the public.

That is why the banking fraternity don't want her - they know that she will wipe the floor with the opposition in the Senate and elsewhere.

I supply the link for comparison but do think your perspective is sound, Mourad, particularly for a new agency that has a populist function.

Regarding our yodeler's Mugwamp straddling of the Do-Nothing-Republican Party and the Tea Party, consider Doyle McManus' LATimes OpEd (7/25/10) "The GOP takes its tea" that begins with:

"The 'tea party' movement is rapidly becoming just another faction of the national Republican Party."

and closes with:

"Which is more likely to absorb the other? That's easy. One of these groups isn't really an organization; it has two years of experience, no national structure and no real fundraising operation. The other has operated since 1854, has built a formidable national organization and has survived electoral disaster more than once.

"The history of American politics is littered with grass-roots movements that challenged existing parties, only to be co-opted and absorbed by them. The only thing new about the tea party is that it arose in an age when communications and politics move at lightning speed. Yes, it's streaking across the Republican sky like a comet, but look fast; it may not be there long."

between which McManus lays out details.

I just read Robert Barnes' 7/26/10 WaPo article "As Stevens retires from court, one final duel with Scalia" and will not select a portion as a tease, other than to mention that they "draw" on each other especially over Heller and McDonald. (Back to bed.)

Joe, I’m glad you agree about the need for a communicator.

This morning’s NYT Washington Memo is on topic. Warren’s Candidacy Raises a Partisan Debate and contains these telling words from a representative of the banking industry:-

'Roger M. Beverage, head of the Oklahoma Bankers Association, said that Ms. Warren was widely respected in Oklahoma, where she was raised and is still remembered as a high school debate champion. But he said that his members did not believe she would understand the needs and concerns of community banks.

“Not that she’s not competent. Goodness gracious, I would never say that. She’s exceptionally bright. We just fear what she might come up with,” Mr. Beverage said. “She’s a partisan and she’s bull-headed and she’s opinionated. And she’s terrific. She’s a great advocate. We just respectfully disagree with her view of the world.”'

I looked up Mr Beverage. He’s not actually a banker but a former trial lawyer who has made a career in bankers’ associations and he obviously has lost none of the forensic skill of damning with faint praise those perceived to be arguing contrary to his clients’ interests.

But I think it is fair to point out that the complexity, multiplicity of regulation, and sheer size of the US payments system means that US banks will have formidable problems to resolve in this century.

About 25% of US residents do not have a bank account at all. The lack of a universal high volume/low value electronic payments system means that there are still an extraordinarily high number of paper based transactions which have to be laboriously and expensively cleared.

Contrast that with the UK where just 13 institutions account for 95% of bank transactions and where BACS has provided 3 day nationwide electronic clearing for years. The recent introduction of FPS (faster payments service) means that individuals can now initiate small value (1p to £10,000) transfers on-line or by telephone which clear in near real time (usually a few minutes) at no charge to personal customers.

Coupled with the near universal payment of salaries and state benefits via bank giro, free banking and debit cards for personal customers with ATMs of all banks accepting others’ cards at no charge, means that the use of cheques has declined exponentially and it is planned to phase them out completely by 2018. Even the use of currency as a payments mechanism is declining rapidly.

But progress requires strong regulation if the vulnerable are not to be disadvantaged. For example, to enable the payments of state benefits electronically, UK banks are obliged to offer a basic service free of charge to anyone who comes in with ID and asks for it. The banks did not volunteer that, they had to be pushed. Banks would like to phase cheques out completely as soon as possible but the regulator has concerns about the ability of some disabled and more elderly seniors to adapt.

I could not fall back asleep thinking of the Stevens v. Scalia "duel." What came to mind was Bugs Bunny and Elmer Fudd. Those of you who may recall my tribute poem "JE NE RECUSE!" several years ago about Justice Scalia's duck hunting with then VP Dick Cheney can figure out which Justice reminds me of Elmer. (Th-Th- That's All, Folks!)


Bankers are not necessarily bright but they can be greedy. On this side of the pond, Louis Brandeis - prior to his nomination by Pres. Wilson to the Supreme Court - wrote "Other People's Money," a progressive's expose of the banking industry. It took too many years to implement effective regulation of the banking industry as evidenced by the events of 1929. Before the investment banking industry took over the historic banking industry, for the most part the regulations enacted during the New Deal worked. Investment bankers are all greed. The regular banking industry saw investment bankers making loads of money and tried to figure out how they could increase their earnings. What they forgot was that they were using other people's money. Fiduciary responsibilities were weakened not only in the traditional banking industry but in investment banking and other investment institutions. All achieved various forms of limiting liability. Prudent Man Rule? Forget about it. Caveat emptor has its foot in the door. (Consider that even - or especially? - law firms and accounting firms, as gatekeepers, got around to limiting their liability.) As you point out, the private sector cannot be relied upon to supply a conscience to these industries. And what do the Do-Nothing-Republican Party and its auxiliary Tea Party seek? Less government and thus less regulation - a repeat of Bush/Cheney and the crash of 2008.


I could not agree with you more about the historical side of things and about the ill-effects of “greed is good” not just on banking but on the lawyers and the accountants and the ratings agencies etc. That is as true in the UK as in the USA and that is why I now bank with a bank 73% owned by the UK government.

In today’s increasingly complex world, I am not convinced that retail banking for individuals or small businesses can be made economic without consolidation of banks into fewer national or regional banks. Ultimately, I do not believe that in this century there is room for the one branch ”First Citizens Bank of Podunk” So that’s a problem.

Nor am I convinced that recent legislation on either side of the Atlantic will be sufficient to eliminate the ”too big to fail” phenomenon. Yes there can be progress on separating out “casino” operations from conventional banking. But that is not all that is required.

We are in an age where the old banking morality has gone and instead of the old avuncular manager who declined to sell unsuitable products to widows and orphans (often a myth anyway), one has a pretty young girl who gets a commission she badly needs on every product, suitable or not, which she can stiff the unfortunate customers with – ranging from so-called “payment protection insurance” on loans, to motor car breakdown service which is not best value.

So there has to be regulation, it has to be pro-active and consumer-oriented and there have to be effective deterrent sanctions.

I don’t see the GOP, the Party of No, co-operating in any way shape or form with the implementation of that public policy objective. Indeed, there have been some Democrats in the Congress who have only lately had a Damascene conversion, just as there have been UK politicians who have been happy to take directorships and paid consultancies dished out on the “old boys net”.

So I remain unconvinced that there is any downside to the appointment which is being advocated by so many. At this time, I would consider a failure to appoint Professor Warren as a cracking good opportunity missed.

Accord with Shag's historical summary, The New Republic had an interesting book review about a new Brandeis bio:,0&passthru=ODNhYWZkNDEzZDM3MzJkMDcyOTYxYmFjMjUzOTU1YWM

Elsewhere, he -- though Kagan referenced Holmes -- was put forth as a suitable model for the next Supreme Court justice. Pragmatic, restrained, but "activist" when appropriate. See, e.g., his dissent in Olmstead v. U.S.


"Which is more likely to absorb the other? That's easy. One of these groups isn't really an organization; it has two years of experience, no national structure and no real fundraising operation. The other has operated since 1854, has built a formidable national organization and has survived electoral disaster more than once.

While McManus' citation of the creation of a Tea Party Caucus jumping on board the Tea Party bandwagon as an example of the GOP absorbing the Tea Party is silly on its face, he does pose an interesting long term question above.

Time will tell.

In response to our yodeler's prophetic (or pathetic):

"Time will tell."

I say, "Time wounds all heels."

as our yodeler ignores the final paragraph of McManus' column.

If our yodeler is reflective of Tea Party membership, then the membership is deep-rooted Bush/Cheneyites. If not, then under what rocks were they hiding from 1/20/01 to 1/20/09?

This comment has been removed by the author.

Shag, Baghdad Bart isn't a deep rooted Bush/Cheneyite, he just supported and defended everything they did and said.

I see that poor dear Bart is posting from cloud-cuckooland again.

I had hoped that dear Bart would have given us his take on the likely outcome of the Colorado gubernatorial race and whether he will now be rooting for Tom Tancredo in his capacity as the newest member of the Colorado Chapter of the American Constitution Party.

I am pleased to see that today's Boston Globe carried an op-ed by Professor Charles Fried (a Regan Solicitor-General) Obama should give Warren a recess appointment.

I hope somebody in the White House reads this. It could surely be incorporated into the announcement because it perfectly sets out the reasons why the appointment is right.

Politically, it also makes sense.

(1) It is anti-bank and anti-Wall Street and that suits the public mood;

(2) It is pro consumer protection and that will resonate with female voters

(3) It will coincide with the expected confirmation of Ms Kagan to the Supreme Court which would make this the first US Supreme Court ever to have 3 women on the bench, which should also resonate with the female vote.

(4) She's the best candidate. The appointment would do good things for the approval ratings.

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