Unintended Consequences

April 7, 2014

In A Life at Fifty-ish I share the story about how Judge Harry Blackmun became Justice Harry Blackmun. For lovers of stories about unintended consequences, it’s a doozy! (To get an e-copy of A Life at Fifty-ish go to Mark Rubin Writes, click on Free Book, and fill in the blanks.)

Two other unintended consequences stories both involve sitting U.S. Senators. Jefferson Beauregard Sessions III is the star of our first story. He is an Alabama boy, born and raised, and a University of Alabama School of Law graduate.

Jeff Sessions became the United States Attorney for the Southern District of Alabama in 1981. President Ronald Reagan nominated him, he was confirmed by the Senate, and he served for 12 years.

In 1986 President Reagan nominated U.S. Attorney Sessions to be a U.S. District Court judge. Generally, absent serious questions about qualifications, nominees were confirmed back in the day. (In today’s environment, confirmation is often in doubt.) A majority of the American Bar Association Standing Committee on the Judiciary rated the nominee qualified. Nevertheless, credible claims about racist comments and actions became a part of the debate. The Senate Judiciary Committee voted against recommending the nomination and deadlocked on sending the nomination to the full Senate. The nomination was soon withdrawn. No Judge Sessions!

In 1994 Jeff Sessions ran to become Alabama Attorney General. He won. In 1996 he ran for the U.S. Senate. He was elected, and reelected in 2002 and 2008. He will almost certainly win his election this fall.

So, the country might have had obscure District Judge Jeff Sessions, handling trials in federal court in southern Alabama. Now we have Senator Jeff Sessions, closing in on 18 years in office. No. 23 in overall seniority; No. 8 among Republicans. And he’s only 67. Bad trade? Seems like it!

The second story involves Elizabeth Warren. She was a Harvard Law School professor in 2009. She was also a recognized expert on consumer bankruptcy law issues, and a strong advocate for poor people. A rock star in her field!

In 2010 Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act. The law did many things, including establishing the Consumer Financial Protection Bureau. Elizabeth Warren was a Special Assistant to the President, working on issues that would fall within the CFPB’s purview, when Congress created the bureau.

Everyone assumed Elizabeth Warren would be the CFPB’s first director. The natural! Alas, President Obama elected not to nominate Elizabeth Warren as the head of the CFPB, as every signal he received included the word “filibuster” within its body. Ultimately, he nominated Richard Cordray. The Republicans in the Senate refused to allow a vote, Mr. Cordray was appointed through the recess-appointment process, and was finally confirmed by the Senate in July 2013. (The message, sent in so many words from Republicans in the Senate? “We don’t like the bureau, so no one will be appointed to run it.”)

And Elizabeth Warren? When Senator Ted Kennedy died in 2009 he was replaced in a special election by Scott Brown. Elizabeth Warren ran against Senator Brown in 2012 and won easily. Now she’s a powerful voice in the U.S. Senate for poor people. And how often does anyone here about CFPB Director Cordray?

I don’t know about takeaways here. If a judicial nominee may be a racist, those issues cannot readily be ignored. And if someone thinks the fate of the republic depends on not having a director for an agency because he or she doesn’t like the agency, I guess that person will fight tooth and nail to keep that seat empty. And, as John Lennon and Sheryl Crow have noted so poetically, life happens while we’re all making our plans.

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