Cross posted from The Stars Hollow Gazette

This is your morning Open Thread. Pour your favorite beverage and review the past and comment on the future.

Find the past “On This Day in History” here.

January 13 is the 13th day of the year in the Gregorian calendar. There are 352 days remaining until the end of the year (353 in leap years).

It is still celebrated as New Year’s Eve (at least in the 20th & 21st centuries) by countries still using the thirteen day slower Julian calendar (Old New Year).

On this day in 1898, French writer Emile Zola’s inflammatory newspaper editorial, entitled “J’accuse,” is printed. The letter exposed a military cover-up regarding Captain Alfred Dreyfus. Dreyfus, a French army captain, had been accused of espionage in 1894 and sentenced in a secret military court-martial to imprisonment in a South American penal colony. Two years later, evidence of Dreyfus’ innocence surfaced, but the army suppressed the information. Zola’s letter excoriated the military for concealing its mistaken conviction.

Dreyfus Affair

Captain Alfred Dreyfus was a Jewish artillery officer in the French army. When the French intelligence found information about someone giving the German embassy military secrets, anti-semitism seems to have caused senior officers to suspect Dreyfus, though there was no direct evidence of any wrongdoing. Dreyfus was court-martialled, convicted of treason and sent to Devil’s Island in French Guiana.

LL Col. Georges Picquart, though, came across evidence that implicated another officer, Ferdinand Walsin Esterhazy, and informed his superiors. Rather than move to clear Dreyfus, the decision was made to protect Esterhazy and ensure the original verdict was not overturned. Major Hubert-Joseph Henry forged documents that made it seem that Dreyfus was guilty and then had Picquart assigned duty in Africa. Before leaving, Picquart told some of Dreyfus’s supporters what he knew. Soon Senator August Scheurer-Kestner took up the case and announced in the Senate that Dreyfus was innocent and accused Esterhazy. The right-wing government refused new evidence to be allowed and Esterhazy was tried and acquitted. Picquart was then sentenced to 60 days in prison.

Émile Zola risked his career and even his life on 13 January 1898, when his “J’accuse“, was published on the front page of the Paris daily, L’Aurore. The newspaper was run by Ernest Vaughan and Georges Clemenceau, who decided that the controversial story would be in the form of an open letter to the President, Felix Faure. Émile Zola’s “J’Accuse” accused the highest levels of the French Army of obstruction of justice and antisemitism by having wrongfully convicted Alfred Dreyfus to life imprisonment on Devil’s Island. Zola declared that Dreyfus’ conviction came after a false accusation of espionage and was a miscarriage of justice. The case, known as the Dreyfus affair, divided France deeply between the reactionary army and church, and the more liberal commercial society. The ramifications continued for many years; on the 100th anniversary of Zola’s article, France’s Roman Catholic daily paper, La Croix, apologized for its antisemitic editorials during the Dreyfus Affair. As Zola was a leading French thinker, his letter formed a major turning-point in the affair.

Zola was brought to trial for criminal libel on 7 February 1898, and was convicted on 23 February, sentenced, and removed from the Legion of Honor. Rather than go to jail, Zola fled to England. Without even having had the time to pack a few clothes, he arrived at Victoria Station on 19 July. After his brief and unhappy residence in London, from October 1898 to June 1899, he was allowed to return in time to see the government fall.

The government offered Dreyfus a pardon (rather than exoneration), which he could accept and go free and so effectively admit that he was guilty, or face a re-trial in which he was sure to be convicted again. Although he was clearly not guilty, he chose to accept the pardon. Émile Zola said, “The truth is on the march, and nothing shall stop it.” In 1906, Dreyfus was completely exonerated by the Supreme Court.

The 1898 article by Émile Zola is widely marked in France as the most prominent manifestation of the new power of the intellectuals (writers, artists, academicians) in shaping public opinion, the media and the state.

Cross posted from The Stars Hollow Gazette

The Florida Inspector General, Jeff Atwater issued a statement (pdf) deciding not to investigate the forced resignation of two lawyers who led a crackdown on foreclosure fraud. The report concluded that no one in the office of Florida Attorney General Pam Bondi broke any laws or rules.

naked capitalism‘s Yves Smith explains the “hatchet job” that this report reveals:

Now narrowly, there may indeed be nothing to investigate relative to their firing, in that workers in the US have pretty close to zero rights and a boss can indeed fire someone simply for not sharing his sense of priories. But there is a more general question of public interest as to whether a firing in a public office was indeed politically motivated, particularly if the investigators were ruffling the feathers of parties that the AG did not want to annoy (and as the brief one page conclusion notes, Florida does have statutes against “misuse of a public position” but query how that is interpreted in practice).

Effectively, this “review” is an effort at reputation/character assassination via the release of pretty much only one side of a “he said, she said” (Clarkson and Edwards were given a brief phone interview which was limited to two conversations Lawson had with them about their performance; they were given no opportunity to contest the allegations made in the subsequent interviews, which were not just with Lawson, Conners, and Muniz, but also five other members of the AG’s office).[..]

To put it mildly, if you read the 85 page document and didn’t know the context (the extensive, widespread evidence of bad conduct and strained pleadings by the foreclosure mills and LPS, and the prior tip top reviews received by Clarkson and Edwards), you’d think they were fuckups of the first order and were lucky to have jobs. This is heresay presented as unvarished truth, and the unsupported (and as we will discuss later, often obviously untrue or at best misleading) charges extend to two Florida foreclosure fraud investigators, Lisa Epstein and Lynn Szymoniak. [..]

For clarity and overview of just how the Florida Attorney General’s office has become so corrupt, David Dayen at FDL explains how the departure of the an old school Republican as AG and, at the same time, the resignation of economic crimes division led to the whitewash of the firings:

(Bill) McCollum left the AGs office in January, replaced by a different Republican, Pam Bondi. At the same time, the longtime director of the economic crimes division left, and Richard Lawson, a former defense attorney for white collar criminals – mainly bank officials – came in. As Lawson acknowledges in his statement to the IG report (more on that in a minute), he received complaints from the lawyers of several of the defendants in Clarkson and Edwards’ cases, in particular Lender Processing Services (LPS), which was part of a multistate investigation at the time.

Lawson immediately went to work criticizing Clarkson and Edwards’ conduct, disputing their claims, savaging the work of their office, and micromanaging their investigations (but only the foreclosure fraud investigations, not their other work). By May they were out, fired by Lawson and Bondi. They were given 90 minutes to pack up their things and leave the office, and lost access to all their files and emails. [..]

The most potentially damning part of the IG report concerns a draft subpoena that was part of a multistate investigation against LPS. Lawson claims that Clarkson leaked the subpoena to Epstein, which Epstein contends was part of a public records request. Those can be done verbally in the state of Florida, but Lawson claims that there’s no record of it. Epstein added that she has received receipt of previous public records requests from the AGs office. In the case of the LPS subpoena, Lawson contends that it would not fall under a public records request. But Epstein says she never published a draft LPS subpoena, or circulate it to the media, and so it’s impossible for other state AGs to complain that “the subpoena came up on the blog.” Because Clarkson and Edwards have no access to their emails anymore, “it’s difficult to respond to the report.” Days after the alleged leak of the subpoena, Clarkson and Edwards were fired.

And the deeper that you look into the IG’s report the worse it gets. More from Yves:

Abigail Field’s post on how the Florida attorney general’s office befriends foreclosure fraudsters is an important, if nausea-inducing read. One of the striking sections that makes the extent of the corruption clear is a snippet toward the end. It show how the AG’s office acted to help Lender Processing Services do damage control, when it had LPS under investigation for foreclosure frauds.

Field points out that the investigation of LPS was launched under the previous AG, Bill McCollum, and is supposedly still active. [..]

Field goes through the current AG Pam Bondi’s fraudster-favoring conduct, which is less surprising than it ought to be, since the AG’s Economic Crimes Division has a proud history of being more in bed with probable criminals than against them. Here Field relies on the report of a former seven year staffer in the AG’s office, attorney Andrew Spark, who wrote after Bondi took office about the long standing considerable obstacles to serving the public interest, such as the all too predictable revolving door (with former employees going to foreclosure mills). While Spark made it clear that he was not a supporter of the aggressive Clarkson/Edwards position (these were the two employees we wrote about yesterday who were fired under suspicious circumstances), he nevertheless presents damning evidence in the section of his letter titled “Powerful interests have influence.”

The message, as Yves states, is very clear, doing your job efficiently in Florida will get you fired and your reputation destroyed because it’s more important to protect the banks than the homeowners they defrauded.

Cross posted from The Stars Hollow Gazette

This is your morning Open Thread. Pour your favorite beverage and review the past and comment on the future.

Find the past “On This Day in History” here.

January 12 is the 12th day of the year  

On this day in 1932, Hattie Ophelia Wyatt Caraway (February 1, 1878 – December 21, 1950), a Democrat from Arkansas, becomes the first woman to be elected to the U.S. Senate.

Hattie Wyat was born near Bakerville, Tennessee, in Humphreys County, the daughter of William Carroll Wyatt, a farmer and shopkeeper, and Lucy Mildred Burch. At the age of four she moved with her family to Hustburg, Tennessee. After briefly attending Ebenezer College in Hustburg, she transferred to Dickson (Tenn.) Normal College, where she received her B.A. degree in 1896. She taught school for a time before marrying in 1902 Thaddeus Horatius Caraway, whom she had met in college; they had three children, Paul, Forrest, and Robert. The couple moved to Jonesboro, Arkansas where she cared for their children and home and her husband practiced law and started a political career.

The Caraways settled in Jonesboro where he established a legal practice while she cared for the children, tended the household and kitchen garden, and helped to oversee the family’s cotton farm. The family eventually established a second home Riversdale at Riverdale Park, Maryland. Her husband, Thaddeus Caraway, was elected to the United States House of Representatives in 1912, and he served in that office until 1921 when he was elected to the United States Senate where he served until he died in office in 1931. Following the precedent of appointing widows to temporarily take their husbands’ places, Arkansas governor Harvey Parnell appointed Hattie Caraway to the vacant seat, and she was sworn into office on December 9. With the Arkansas Democratic party’s backing, she easily won a special election in January 1932 for the remaining months of the term, becoming the first woman elected to the Senate. Although she took an interest in her husband’s political career, Hattie Caraway avoided the capital’s social and political life as well as the campaign for woman suffrage. She recalled that “after equal suffrage I just added voting to cooking and sewing and other household duties.”

n May 1932 Caraway surprised Arkansas politicians by announcing that she would run for a full term in the upcoming election, joining a field already crowded with prominent candidates who had assumed she would step aside. She told reporters, “The time has passed when a woman should be placed in a position and kept there only while someone else is being groomed for the job.” When she was invited by Vice President Charles Curtis to preside over the Senate she took advantage of the situation to announce that she would run for reelection. Populist Louisiana politician Huey Long travelled to Arkansas on a 9-day campaign swing to campaign for her. She was the first female Senator to preside over this body as well as the first to chair a Committee (Senate Committee on Enrolled Bills). Lacking any significant political backing, Caraway accepted the offer of help from Long, whose efforts to limit incomes and increase aid to the poor she had supported. Long was also motivated by sympathy for the widow as well as by his ambition to extend his influence into the home state of his rival, Senator Joseph Robinson. Bringing his colorful and flamboyant campaign style to Arkansas, Long stumped the state with Caraway for a week just before the Democratic primary, helping her amass nearly twice as many votes as her closest opponent. She went on to win the general election in November.

Cross posted from The Stars Hollow Gazette

This is your morning Open Thread. Pour your favorite beverage and review the past and comment on the future.

Find the past “On This Day in History” here.

January 11 is the 11th day of the year in the Gregorian calendar. There are 354 days remaining until the end of the year (355 in leap years).

On January 11, 1908, U.S. President Theodore Roosevelt declares the massive Grand Canyon in northwestern Arizona a national monument.

Though Native Americans lived in the area as early as the 13th century, the first European sighting of the canyon wasn’t until 1540, by members of an expedition headed by the Spanish explorer Francisco Vasquez de Coronado. Because of its remote and inaccessible location, several centuries passed before North American settlers really explored the canyon. In 1869, geologist John Wesley Powell led a group of 10 men in the first difficult journey down the rapids of the Colorado River and along the length of the 277-mile gorge in four rowboats.

By the end of the 19th century, the Grand Canyon was attracting thousands of tourists each year. One famous visitor was President Theodore Roosevelt, a New Yorker with a particular affection for the American West. After becoming president in 1901 after the assassination of President William McKinley, Roosevelt made environmental conservation a major part of his presidency. After establishing the National Wildlife Refuge to protect the country’s animals, fish and birds, Roosevelt turned his attention to federal regulation of public lands. Though a region could be given national park status–indicating that all private development on that land was illegal–only by an act of Congress, Roosevelt cut down on red tape by beginning a new presidential practice of granting a similar “national monument” designation to some of the West’s greatest treasures.

Grand Canyon National Park became a national park in 1919. So famous is this landmark to modern Americans that it seems surprising that it took more than thirty years for it to become a national park. President Theodore Roosevelt visited the rim in 1903 and exclaimed: “The Grand Canyon fills me with awe. It is beyond comparison–beyond description; absolutely unparalleled throughout the wide world …. Let this great wonder of nature remain as it now is. Do nothing to mar its grandeur, sublimity and loveliness. You cannot improve on it. But what you can do is to keep it for your children, your children’s children, and all who come after you, as the one great sight which every American should see.”

Despite Roosevelt’s enthusiasm and his strong interest in preserving land for public use, the Grand Canyon was not immediately designated as a national park. The first bill to create Grand Canyon National Park had been introduced in 1882 and again in 1883 and 1886 by Senator Benjamin Harrison. As President, Harrison established the Grand Canyon Forest Reserve in 1893. Theodore Roosevelt created the Grand Canyon Game Preserve by proclamation in 1906 and Grand Canyon National Monument in 1908. Senate bills to establish a national park were introduced and defeated in 1910 and 1911; the Grand Canyon National Park Act was finally signed by President Woodrow Wilson in 1919. The National Park Service, which had been established in 1916, assumed administration of the park.

The creation of the park was an early success of the environmental conservation movement; its National Park status may have helped thwart proposals to dam the Colorado River within its boundaries. (Lack of this fame may have enabled Glen Canyon Dam to be built upriver, flooding Glen Canyon and creating Lake Powell.) In 1975, the former Marble Canyon National Monument, which followed the Colorado River northeast from the Grand Canyon to Lee’s Ferry, was made part of Grand Canyon National Park. In 1979, UNESCO declared it as a World Heritage Site.

The Grand Canyon itself, including its extensive system of tributary canyons, is valued for the combination of large size, depth, and the exposed layering of colorful rocks dating back to Precambrian times. It was created through the incision of the Colorado River and its tributaries after the Colorado Plateau was uplifted and the Colorado River system developed along its present path.

Cross posted from The Stars Hollow Gazette

In 2006, the public policy research organization, The Cato Institute, invited some leading liberal Democratic columnists and bloggers to discuss the question if Libertarians should vote Democratic:

In over a half-decade of Republican political dominance, Americans have witnessed a huge expansion in the scope and cost of government, a questionably just and so-far unsuccessful war in Iraq, serious erosions of civil liberty, and a troubling tendency toward an imperial executive. Is it time for the traditional alliance between libertarians and conservatives to finally end? If Republicans in power have failed so utterly to promote libertarian ideals, would libertarians better advance their cause by supporting Democrats at the polls? Of course, the fact that libertarians have been so badly abused by conservatives doesn’t necessarily imply they will find a more welcoming home among liberals. Is the Democratic tent big enough to include small-government free marketeers. Perhaps libertarians have something to gain by supporting to Democrats, but does the Democratic party have anything to gain by courting libertarians?

Markos “Kos” Moulitsas, proprietor of DailyKos, opened the discussion with the lead article, The Case for the Libertarian Democrat:

It was my fealty to the notion of personal liberty that made me a Republican when I came of age in the 1980s. It is my continued fealty to personal liberty that makes me a Democrat today.

The case against the libertarian Republican is so easy to make that I almost feel compelled to stipulate it and move on. It is the case for the libertarian Democrat that has created much discussion and not a small amount of controversy when I first introduced the notion in what was, in reality, a throwaway blog post on Daily Kos on a slow news day in early June 2006.

Moulitsas went on to describe how the article was attacked by Libertarians unwilling to recognize they were losing their “grasp of libertarian principles” but at the same time were “unwilling to cede any ground to a liberal“. The real surprise came from the general reaction:

[O]f Americans who are uncomfortable with Republican/conservative efforts to erode our civil liberties while intruding into our bedrooms and churches; they don’t like unaccountable corporations invading their privacy, holding undue control over their economic fortunes, and despoiling our natural surroundings; yet they also don’t appreciate the nanny state, the over-regulation of small businesses, the knee-jerk distrust of the free market, or the meddlesome intrusions into mundane personal matters.

The discussion in that introduction continues with Moulitsas explaining why he is, in essence, a Libertarian Democrat, how liberal Democrats relate to Libertarians, the Conservatives’ “war on freedom” and why he believed that there was a rise of Libertarian Democrats. He went on to write three more article for that series:

They are well worth reading and book marking.

Since then, Mr. Moulitsas has become a prominent voice for the left and has used the Internet to bring liberal/progressive policies into political mainstream and to the attention of what he calls the “traditional” media.  

Cross posted from The Stars Hollow Gazette

Recently Federal District Court Judge Jed Rackoff rejected the $285 million settlement that Citibank had negotiated with the SEC over $1 billion in mortgage securities fraud that would also have exonerated the bank of guilt. The SEC acceptance of “neither admit nor deny” language that has been considered “boilerplate” in these settlements has now been, not only rejected by the courts, but dropped by the SEC in securities fraud cases:

The Securities and Exchange Commission, in a fundamental policy shift, said Friday that it would no longer allow defendants to say they neither admit nor deny civil fraud or insider trading charges when, at the same time, they admit to or have been convicted of criminal violations.

The change is the first time that the S.E.C. has stepped back from its longstanding practice of allowing companies to settle fraud charges by paying a fine without admitting wrongdoing. The new policy will also apply to cases where a company or an individual enters an agreement with criminal authorities to defer prosecution or to not be prosecuted as part of a settlement.

Robert Khuzami, the director of enforcement at the S.E.C., said the agency would continue to use the “neither admit nor deny” settlement process when the agency alone reached a deal with a company in a case of civil securities law violations. Those types of cases make up a large majority of S.E.C. settlements.

As David Dayen at FDL so rightly notes, “This is a first step to stopping this travesty of allowing companies to get off the hook and pay their way out of fraud violations without even admitting they did anything wrong. And this never happens without the work of Jed Rakoff.”

Cross posted from The Stars Hollow Gazette

This is your morning Open Thread. Pour your favorite beverage and review the past and comment on the future.

Find the past “On This Day in History” here.

January 10 is the 10th day of the year in the Gregorian calendar. There are 355 days remaining until the end of the year (356 in leap years).

On this day in 1901, a gusher signals start of U.S. oil industry

A drilling derrick at Spindletop Hill near Beaumont, Texas, produces an enormous gusher of crude oil, coating the landscape for hundreds of feet and signaling the advent of the American oil industry. The geyser was discovered at a depth of over 1,000 feet, flowed at an initial rate of approximately 100,000 barrels a day and took nine days to cap. Following the discovery, petroleum, which until that time had been used in the U.S. primarily as a lubricant and in kerosene for lamps, would become the main fuel source for new inventions such as cars and airplanes; coal-powered forms of transportation including ships and trains would also convert to the liquid fuel.

Crude oil, which became the world’s first trillion-dollar industry, is a natural mix of hundreds of different hydrocarbon compounds trapped in underground rock. The hydrocarbons were formed millions of years ago when tiny aquatic plants and animals died and settled on the bottoms of ancient waterways, creating a thick layer of organic material. Sediment later covered this material, putting heat and pressure on it and transforming it into the petroleum that comes out of the ground today.

(emphasis mine)

There had long been suspicions that oil might be under [“Spindletop Hill.” The area was known for its sulfur springs and bubbling gas seepages that would ignite if lit. In August 1892, George W. O’Brien, George W. Carroll, Pattillo Higgins and others formed the Gladys City Oil, Gas, and Manufacturing Company to do exploratory drilling on Spindletop Hill. The company drilled many dry holes and ran into trouble, as investors began to balk at pouring more money into drilling with no oil to show for it.

Pattillo Higgins left the company and teamed with Captain Anthony F. Lucas, the leading expert in the U.S. on salt dome formations. Lucas made a lease agreement in 1899 with the Gladys City Company and a later agreement with Higgins. Lucas drilled to 575 feet (180 m) before running out of money. He secured additional funding from John H. Galey and James M. Guffey of Pittsburgh, but the deal left Lucas with only a small share of the lease and Higgins with nothing.

Lucas continued drilling and on January 10, 1901, at a depth of 1,139 ft (347 m), what is known as the Lucas Gusher or the Lucas Geyser blew oil over 150 feet (50 m) in the air at a rate of 100,000 barrels per day (16,000 m3/d)(4,200,000 gallons). It took nine days before the well was brought under control. Spindletop was the largest gusher the world had seen and catapulted Beaumont into an oil-fueled boomtown. Beaumont’s population of 10,000 tripled in three months and eventually rose to 50,000. Speculation led land prices to increase rapidly. By the end of 1902, over 500 companies were formed and 285 active wells were in operation.

Production began to decline rapidly after 1902, and the wells produced only 10,000 barrels per day (1,600 m3/d) by 1904. On November 14, 1925, the Yount-Lee Oil Company brought in its McFaddin No. 2 at a depth of about 2,500 feet (800 m), sparking a second boom, which culminated in the field’s peak production year of 1927, during which 21,000,000 barrels (3.3 GL) were produced. Over the ten years following the McFaddin discovery, over 72,000,000 barrels (11.4 GL) of oil were produced, mostly from the newer areas of the field. Spindletop continued as a productive source of oil until about 1936. It was then mined for sulfur from the 1950s to about 1975.

America’s first documented oil spill

Cross posted from The Stars Hollow Gazette

Greg Sargent at the Washington Post reports:

Obama is set to appoint Sharon Block, Terence Flynn, and Richard Grifin to the board – something unions have made a big priority for them in the new year. Senate Republicans have opposed the recess appointments to the NLRB on constitutional grounds, but unions charge that Republicans are only interested in rendering the agency inoperative.

Obama’s move, which will help energize unions in advance of the 2012 election, is yet another sign that he is determined to circumvent GOP opposition and make government functional again by any means necessary. It’s another sign that the White House and Dems have abanoned the illusion that anything can be done to secure bipartisan compromise with Republicans on the major items on Obama’s agenda.

From Think Progress:

All 47 Senate Republicans have warned Obama of a “constitutional conflict” should he choose to use his recess appointment powers – authority he is well within his right to use, as ThinkProgress’ Ian Millhiser noted yesterday – but it was Chief Justice John Roberts, a noted conservative, who said the president should make recess appointments to keep the NLRB functioning, as ThinkProgress reported in 2010.

Obama’s appointment of Block, Flynn, and Griffin is important, too, because it boosts the board’s membership to five, protecting its quorum even if member Brian Hayes follows through on his threats to quit. Preserving its right to quorum ensures that its rulings will not be thrown out on legal challenges, as more than 600 cases were by the Roberts Court in 2010.

Cross posted from The Stars Hollow Gazette

It was announced by the White House that President Barack Obama will make a recess appointment of former Attorney General of Ohio, Richard Cordray to head the newly created Consumer Financial Protection Bureau (CFPB):

President Barack Obama installed Richard Cordray as head of the Consumer Financial Protection Bureau with a recess appointment today, testing the limits of his executive authority to fill the post without Senate approval.

Obama nominated Cordray to be the bureau’s first director in July, almost one year after enactment of the Dodd-Frank financial regulatory law creating the agency. Republicans blocked Cordray’s confirmation by the Senate last month. Putting him in the job today may set up an election-year court fight between the White House and Congress.

Even thought the Senate has been under Democratic control since 2006 when the tactic of pro forma session was first employed to keep President George W. Bush from making recess appointments to the bench, there have been questions by legal scholars about the constitutionality about their use. It has since been used to placate the Republicans in hopes of winning their cooperation, obviously to no avail.

Senate Majority Leader Mitch McConnell (R-KY) called President Obama move “arrogant”, saying that “Breaking from this precedent lands this appointee in uncertain legal territory, threatens the confirmation process and fundamentally endangers the Congress’s role in providing a check on the excesses of the executive branch.”

House Speaker John Boehner had a similar reaction calling the appointment an “extraordinary and entirely unprecedented power grab” by the president.

The legal precedent for these sessions is on very shaky ground. In a 1993 court case involving the Postal Service Board of Governors, Justice Department lawyers argued in court papers that presidents can make recess appointments when the Senate is out of session for more than three days.

The brief suggested that a president might lack that authority during shorter breaks. Pointing to the constitutional requirement that the Senate and House get one another’s consent before adjourning for more than three days, the Justice Department said the constitutional framers might not have considered shorter recesses to be significant.

“If the recess here were of three days or less, a closer question would be presented,” the Justice Department argued.

However, lawyers who advised President George W. Bush on recess appointments wrote that the Senate “cannot use sham ‘pro forma’ sessions to prevent the president from exercising a constitutional power.”

David Dayen at FDL points out the Constitutional argument that there is no time requirement in the Constitution for Congress to be in recess before the president can make recess appointments:

As for the judicial question on whether pro forma sessions count as keeping Congress in session, the 11th Circuit Court of Appeals ruled back in 2007 that “The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause.” On the other side of this, Solicitor General Neal Katyal, in a 2010 case, argued that the Administration recognized that a 3-day recess was “too small,” in their understanding, to make appointments.

While the Republicans will very likely mount a court challenge, claiming past precedent, it may well fail since the president has the power to make recess appointments under Article II, Section 2 of the Constitution which states, “the President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” It can be argued that Congress is in recess when they gavel out at the end of each day or whenever there is no quorum, which goes to the constitutional argument about pro forma sessions.

The other issue is why didn’t he appoint Elizabeth Warren who is eminently more qualified than Cordray to head the CFPB? It is most likely because of objections from Treasury Secretary Timothy Geithner’s objections and her memo to the the state attorney general’s who are negotiating a settlement with the big banks over mortgage fraud.

Make no mistake, Obama is doing this now for purely political motivations. It emphases Republican obstructionism and as a ploy to win back the disenfranchised left wing of the Democratic Party, as well as, the Independent voters who believed in all his “hopey, changey” campaign rhetoric.