FROM ISSUE NUMBER 7 ~ SPRING 2011 GO TO TABLE OF CONTENTS
Fixing the Confirmation Process
In May 2007, when I was nominated by President George W. Bush to serve as deputy secretary of Health and Human Services, a White House colleague came into my office with sobering counsel. On average, he said, it takes almost nine months for a nominee to an executive-branch position to get a vote in the Senate. Just when — and whether — the nominee gets that vote depends a great deal on the Senate's vacation schedule. The likelihood of confirmation, he explained, increases markedly just before one of the various congressional recesses (such as those for Memorial Day and Independence Day, or the August break). At any other time, a nominee's chances of being confirmed for any non-secretarial post are essentially nil.
In the end, I was lucky: I was confirmed right before the 2007 August recess. Some of my colleagues, however, did not make it in at that point; they were never confirmed. Nor were they ever formally rejected, for that matter. As President Bush's second term wound down, the Democratic Senate began running out the clock on pending nominees and slowed the process even more than usual.
This pattern was hardly unique to the Bush administration. Rather, it has been the normal course of the confirmation process for decades. It would be one thing if this dynamic applied only to judicial confirmations, and especially to those to the Supreme Court: After all, presidents should expect less deference from Congress when the two elected branches jointly fill the ranks of the third co-equal branch of government, granting lifetime appointments to judges. But when staffing an administration — making hiring decisions to fill departments and agencies very clearly under the authority of the executive — the president should have a right to expect significant deference, and, at the very least, swift up-or-down decisions on his nominees.
Thus the sorry state of the process of confirming executive-branch nominees cries out for reform. Today, the way in which the highest levels of our government are staffed is a story of deferral and delay, of key posts left empty for years, and of an assault on both presidential effectiveness and orderly government. Consider that, as of the end of 2010 — nearly two years after President Obama's inauguration — 22% of the more than 500 Senate-confirmed positions in his administration were either vacant or temporarily filled by acting officials, according to the Washington Post.
Such vacancies can have serious consequences. When a terrorist tried to bring down a Northwest Airlines jet bound for Detroit on Christmas in 2009, the Transportation Security Administration had no confirmed director to address the concerns of Congress or the public regarding the government's response. When a swine-flu outbreak occurred in April of that year, President Obama's Department of Health and Human Services did not have a single confirmed appointee in place, from the secretary on down — a leadership vacuum that could have been devastating had the outbreak been more severe.
Even when a nominee does eventually get confirmed, the process involved is protracted, intrusive, and embarrassing, as would-be officials are forced to disclose many intimate details of their lives and personal histories, which can often end up in the hands of hostile lawmakers or reporters. In many cases, the process is also quite expensive: If a nominee wishes to have a lawyer help him through the complex ordeal, he must shoulder the fees, which can quickly pile up. As a result, good candidates are often driven away from senior positions in government.
How did the situation get this bad? And what might be done to improve it? The history of the confirmation process for executive-branch officials suggests that the biggest culprit is the growth of government itself. A close second is the increased significance of personnel choices in ideological battles. Taken together, these trends have made much of our confirmation process obsolete: A practice intended to prevent patronage and graft while hiring for a few dozen government positions serves us poorly in an age when presidents must fill hundreds of Senate-approved slots across a sprawling bureaucracy — one that reaches deep into every crevice of the life of the nation.
Given the complexity of the problems that plague this process, fixing it will not be easy. Still, a few targeted reforms at both ends of Pennsylvania Avenue could improve matters — and help restore some sanity to the way in which we staff our government.
ADVICE AND CONSENT
The Senate confirmation process originates in Article II, Section 2, of the Constitution, which states that the president, "by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law."
As the writings of the framers make clear, the purpose of involving the Senate in this process was to prevent the distribution of government jobs as political patronage. Senate concurrence in executive appointments, as Alexander Hamilton put it in Federalist No. 76, "would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President."
The chief executive, Hamilton thought, should be given significant latitude in making appointments, and especially in selecting executive-branch officers (as opposed to judges) who would, after all, be the president's underlings. While the Senate should reject candidates who, as Hamilton put it, "had no other merit than that of coming from the same State to which [the president] particularly belonged, or of being in some way or other personally allied to him," the very power of the Senate to reject such people would deter presidents from naming them. On the whole, Hamilton expected that the president would generally get his way and that it was "not very probable that his nomination would often be overruled."
This is certainly how the process worked throughout most of America's history. George Washington, always conscious that his actions would serve as precedents for future chief executives, interpreted the vague phrase "Advice and Consent" to have much more to do with consent than advice. He did not involve lawmakers in the process by which he chose nominees, but rather sent names to the Senate for ratification or rejection. With very few exceptions (including Abraham Lincoln, who often actively involved prominent senators in his personnel judgments), this is how subsequent presidents have approached the appointment process as well.
From the beginning, the internal politics of the Senate played a large part in confirmation decisions. The practice of "senatorial courtesy," by which an individual senator can block the confirmation of appointees from his home state, was evident in the very first rejection of a presidential nominee. On August 5, 1789, the Senate denied the nomination of Benjamin Fishbourn of Georgia to the post of naval officer at the Port of Savannah. According to the official U.S. Senate history of the incident, Fishbourn had no manifest faults other than the fact that he had somehow alienated Georgia senator James Gunn, who succeeded in killing the appointment.
While President Washington accepted the rejection — he had no other choice — he also asked that, in the future, when senators had questions about nominees, they "communicate that circumstance to me, and thereby avail yourselves of the information which led me to make them, and which I would with pleasure lay before you." Thus began the process of sharing vetting information with the legislative branch.
For a long time, the process worked relatively well under these ground rules, mainly because the size of the federal government was relatively small. George Washington's cabinet had four members, and his more junior appointments requiring confirmation numbered just a few dozen. Half a century later, Zachary Taylor's cabinet had just seven members, and no new Senate-confirmed sub-cabinet positions had been added. Another half-century later, William McKinley had just eight members in his cabinet and a smattering of other Senate-confirmed executive appointees. The first undersecretary was not appointed until 1909 (at the bureaucracy-heavy State Department). Confirmation hearings and votes were thus fairly rare events, confined mostly to the opening months of new administrations. Rejections of presidential nominees remained rare, too; well into the 20th century, most confirmation votes took place within a few weeks of nominations.
As the government began to balloon in size, however, the process started to bog down. In 1935, there were 51 positions in cabinet agencies that required Senate confirmation: ten cabinet secretaries, three undersecretaries, and 38 assistant secretaries. By 1960, the number was 224; by 1980, it was 295; today, there are 526 Senate-confirmed posts spread across numerous layers of bureaucracy.
Many of these positions are subject to Senate approval for reasons that no longer make much sense. As the various agencies and cabinet departments have grown in size over the years, positions that were once quite senior (like assistant secretaries) have gotten buried below layers of bureaucracy, so that some of the most senior officials in cabinet departments (like the chiefs of staff to the cabinet secretaries) are not subject to Senate approval, while some mid-level officials must be confirmed. Today, the full Senate must vote on all secretaries, deputy secretaries, undersecretaries, and almost all assistant secretaries. In addition, the Senate also confirms all ambassadors, departmental general counsels and inspectors general, and many heads of high profile (and not so high profile) agencies, as well as members of federal boards and commissions.
With this growth of government has come an increase in the time required to get individuals through the important (and necessary) vetting process. Under the last three presidents, it has taken an average of 8.5 months — nearly one-fifth of a presidential term — to get an executive-branch nominee from announcement to swearing-in. Moreover, as the government has extended its reach, personnel choices have come to have greater policy significance. As a result, confirmation battles have become more ideologically charged and intense.
Political scientist Paul Light credits much of the change in the character of low-level confirmations to the Reagan administration's use of sub-cabinet appointments. Reagan, with his commitment to the principle that "personnel is policy," centralized appointment decisions in the White House to an unprecedented degree, appointing ideologically committed lower-level officials who made a major difference in advancing the administration's agenda. The practice caused Senate Democrats to take greater notice of such officials. Subsequent presidents have followed Reagan's lead, prompting only greater scrutiny by the Senate — in turn producing a confirmation process that has grown only more confrontational.
Although nominations to executive-branch positions are different in character from judicial nominations, there is little doubt that a major turning point in the history of the confirmation process — a development that affected both categories of appointments — occurred in 1987, with the contentious Senate hearings over the nomination of Judge Robert Bork to the Supreme Court. Bork was a committed champion of judicial originalism and a vocal critic of left-wing constitutional interpretation; his nomination by Ronald Reagan was ferociously contested by Senate Democrats and liberal activist groups, who turned the appointment into a major political spectacle. Bork was famously slandered by the late Senator Edward Kennedy, who declared:
Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is — and is often the only — protector of the individual rights that are the heart of our democracy.
According to Bork's memoir, during his "courtesy visit" with Kennedy, the senator refused to look Bork in the eye and told him that his opposition was "nothing personal." Eventually, Bork's opponents — who went so far as to leak the titles of the videos he and his wife had rented — succeeded in denying the judge a seat on the high court.
The Bork hearings taught senators that confirmation battles could raise their profiles, allow them to upset an administration's agenda, and win them money and accolades from allied interest groups — all at essentially no political cost. It wasn't long before senators and interest groups on both sides of the aisle realized that the same benefits could be reaped by resisting nominees for executive-branch positions. It is therefore no coincidence that, only two short years after the Bork fracas, senators rejected the nomination of their former colleague, Texas Republican John Tower, to become George H. W. Bush's secretary of defense. It was the first time a cabinet appointee had been rejected since the Senate voted down Dwight Eisenhower's choice of Lewis Strauss to be secretary of commerce in 1959. Nor is it mere happenstance that the two decades since have seen six cabinet appointments — those of Zoë Baird, Anthony Lake, Hershel Gober, Linda Chavez, Bernard Kerik, and Tom Daschle — withdrawn before the Senate could even vote on them, a rare occurrence before the 1990s.
The advent of new communications technologies, too, made the process more acrimonious. With the growing prevalence of fax machines in the 1980s, a previously little-known organization — such as the liberal group People for the American Way — could highlight discoveries about a nominee's background with a constant torrent of press releases faxed to supporters and media organizations around the country. The rise of the internet, e-mail, Twitter, and Facebook has made such campaigns even easier. Meanwhile, on television, the existence of C-SPAN and the growth of all-news channels have provided a constant audience for hearings and press events. Those outlets that are more ideological in content, like Fox News and MSNBC, have further enabled activists to rile supporters by trumpeting the alleged flaws of an undesirable nominee. Cable news networks are always hungry for material with which to occupy their 24-hour cycles: By covering a confirmation battle over a nominee who employed an illegal immigrant, or did not pay his taxes, they can fill many hours of airtime — and boost their ratings.
All of these developments have forced recent administrations to vet candidates ever more carefully. Activists, reporters, and Senate staffers will inevitably dig into a nominee's background seeking the one piece of information that can derail his nomination — and because of today's telecommunications capabilities, the scandalous tidbit can go viral within minutes. To avoid such embarrassment, the president and his staff endeavor to make sure that they turn up any possibly damaging information first, before a nominee is even put forward — a requirement that significantly draws out the process of filling empty positions. Thus delay builds upon delay, and the system grows more dysfunctional by the year.
THE AGE OF DELAY
Technically, the Senate has two choices when presented with a nominee: confirmation or rejection. These days, however, the Senate too often opts for a third path — the path of de facto deferral. Very few nominations to executive-branch positions — fewer than 1%, in fact — are rejected outright. But a great many do end up in limbo for months.
In some cases, delays are merely the function of the sheer volume of confirmations the Senate must process. This is particularly common in the early months of a new administration, as Senate committees struggle with a glut of new nominees.
In other cases, delays are driven by concerns about the nominee in question. When a senator believes an individual should not serve in a position to which he has been nominated, and yet cannot muster the support to vote down the nomination, that senator has a few tactics at his disposal. We therefore often find senators placing "holds" on nominations — a tradition by which an individual senator can often forestall Senate action without having to provide any formal reason. Committee chairmen also often decline to schedule hearings and votes, offering only vague assertions of a lack of evidence or qualification (when they bother to offer any reasons at all).
These assertions can turn comical. In April 2010, President Obama nominated Peter Diamond to an open seat on the Federal Reserve Board. Diamond is one of America's leading academic economists; a specialist in government debt and public-financing questions, he has taught at the Massachusetts Institute of Technology for more than four decades (including a stint as head of the storied MIT economics department). He has advised governments at all levels; written numerous books on taxes, entitlement systems, and public financing; and trained many other prominent economists — including Federal Reserve Board chairman Ben Bernanke. In transmitting Diamond's nomination, Obama stressed the importance of swiftly staffing the board in the midst of unprecedented economic turmoil (in which the Fed was playing an outsized role, no less). But nearly a year after his original nomination, Diamond has yet to receive a vote in the Senate.
One of the chief reasons for Diamond's difficulties is that Alabama senator Richard Shelby, the ranking Republican on the Senate Banking Committee, argues that Diamond is unqualified for the job. In October, while waiting to see if the Senate would find him sufficiently qualified, Diamond was awarded the 2010 Nobel Prize in economics for his work explaining how housing and labor markets function. But Senator Shelby was not moved. "While the Nobel Prize for [e]conomics is a significant recognition," Shelby said in a statement, "the Royal Swedish Academy of Sciences does not determine who is qualified to serve on the Board of Governors of the Federal Reserve System."
Of course, winning the Nobel Prize does not mean that Diamond is the perfect person to serve on the Federal Reserve Board. But the sweep of his career and experience certainly suggest his qualifications are adequate — which, in a past era, would have been enough to secure his confirmation.
In yet other cases, delays are driven not by opposition to the nominee but by a desire to use the appointment as leverage to extort concessions from the executive branch on issues that may have little (or nothing) to do with the appointment in question. When President Obama nominated James Clapper to serve as director of national intelligence last summer, Republican senators John McCain, Kit Bond, and Tom Coburn initially blocked Clapper's confirmation. Subsequent events may well have called into question Clapper's suitability for the job, but his qualifications were not the issue. Rather, the senators' move was a way of protesting the administration's unwillingness to allow them to review several classified reports — reports that, they conceded, had nothing in particular to do with the nominee.
Such tactics are not limited to the opposition party. For example, last summer, when President Obama appointed Jacob Lew to serve as director of the Office of Management and Budget, Democratic senator Mary Landrieu of Louisiana held up his confirmation for several months in order to pressure the administration to lift a moratorium on offshore drilling — an issue unrelated to Lew's qualifications, and unrelated even to the position to which he was nominated. In this sense, the confirmation process can resemble an open-air auction, in which senators seize opportunities to secure favors from an administration in exchange for advancing the president's nominees.
These tactics drastically slow the gears of the Senate confirmation process, and thus of staffing the top tiers of the executive branch. But the Senate is not the only cause of delays; indeed, the White House bears a great deal of responsibility as well. Recent presidents, for instance, have been slow in selecting nominees for key sub-cabinet positions, such as the Bush administration's lengthy delays in nominating its various FDA commissioners, and the Obama administration's long wait to pick its head of the Center for Medicare and Medicaid Services. This problem has been particularly acute in the early months of new administrations, despite the fact that incoming presidents have more than two months in which to plan a transition to power. Presidents George H. W. Bush, Bill Clinton, George W. Bush, and Barack Obama took, on average, until nearly two months after their inaugurations to make such appointments, according to data analyzed by Anne O'Connell for the Center for American Progress.
Although these averages improve as administrations advance and the backlogs of early appointments are cleared, at any given time, a significant number of positions remain unfilled because no nomination has been sent to the Senate. Indeed, as of September 2010, 79 Senate-confirmed positions in the Obama administration were vacant without proposed nominees to fill them, according to the Washington Post.
Moreover, recent administrations have imposed on nominees a series of extensive and intrusive background checks and paperwork requirements. The practice began in the Eisenhower administration in response to McCarthy-era concerns about communist infiltration of the government, but it has gotten out of control as the confirmation process has become increasingly contentious. Nominees today must fill out mammoth financial-disclosure forms, FBI background forms, and ethics forms containing hundreds of questions each — all under penalty of perjury. And in 2008, Barack Obama's presidential transition team made these requirements more onerous still, introducing a 63-question form so far-reaching that it included this inquiry: "If you have ever sent an electronic communication, including but not limited to an email, text message or instant message, that could suggest a conflict of interest or be a possible source of embarrassment to you, your family, or the President-Elect if it were made public, please describe."
Questionnaires such as these damage more than just the appointment process: They scare good candidates away from government service, and place enormous burdens on those men and women who do choose to serve. For example, Steven Rattner — who served in President Obama's Treasury Department managing the auto bailout — notes in his recent book that he paid a law firm $400,000 to help him fill out the paperwork required for the position. Rattner is a Wall Street financier with doubtlessly complicated disclosure issues, but the burdens can also be great for appointees who are not wealthy and do not have vast investment portfolios. Indeed, one colleague of mine hired a Washington law firm to fill out his paperwork before he joined the Bush administration — a wise and not outrageous precaution — and was hit with a bill for $38,000.
FROM BAD TO WORSE
Given these serious problems, it is not surprising that President Obama has expressed great frustration at the obstacles he confronts in staffing his administration. As he told NBC's Chuck Todd: "[W]hen it comes specifically to appointments, whether it's judges or critical positions in national security, homeland security, FBI, there — there have been more delays, obstruction, and stalling when it comes to just appointing people to run the day-to-day aspects of Washington than any president has experienced in history."
Yet for all his frustration, Obama has been a major contributor to the problem — even before he arrived at the White House. As a senator, Obama often refused to vote to confirm plainly qualified Republican nominees. In 2005, for instance, he opposed the nomination of John Bolton to serve as ambassador to the United Nations, even though Bolton, for all his bluster, had previously been confirmed to four executive-branch positions by the Senate. Worse, for someone who often talked about getting beyond petty partisan differences, Obama refused to join the "gang of 14" senators who — in an effort to avoid a showdown over the filibustering of nominees — brokered a deal whereby some long-delayed and qualified judicial appointees would receive an up-or-down votes in the Senate. These actions, which may have been necessary to secure Obama's victory in the ideologically heated Democratic primaries, earned him a significant amount of ill will among his Republican Senate colleagues. And now that Obama is president, this behavior has made it harder for him to argue credibly for better treatment of his own nominees.
Second, President Obama has demanded that his nominees meet extremely high ethical standards — hence the 63-question form — but has nonetheless appointed several individuals who patently failed to meet much more basic standards. At the very beginning of the administration, former Senate majority leader Tom Daschle was forced to withdraw as Obama's nominee to be secretary of Health and Human Services because of unpaid taxes and questions surrounding favors he had received — such as a free car and driver — while advising clients with business before the government. Not long after, the then-president of the Federal Reserve Bank of New York, Timothy Geithner, was confirmed as Obama's Treasury secretary despite tax problems of his own. Adding to these high-level embarrassments were early missteps at the sub-cabinet level, such as the selection of Nancy Killefer for a senior post at the Office of Management and Budget and her withdrawal for, once again, a failure to pay taxes. Obama's staffing errors were like blood in the water for activists, reporters, and Senate staffers seeking to derail his nominations, and these groups have accordingly scrutinized subsequent appointees even more closely. This has made the process even slower.
Third, and worst of all, Obama has abused his power to make "recess appointments." Such appointments are to positions that usually require Senate approval, but are made while the Senate is in recess, thereby avoiding a confirmation vote; the appointments last, however, only until the end of the following session of Congress. Recess appointments are specifically authorized by the Constitution, though historians tend to agree that they were originally intended to be used only during the break between two sessions of Congress — an interval that, in the early years of the republic, could sometimes last several months. The framers wanted to ensure that essential positions, like secretary of state or secretary of war, were not left empty for such long periods. Many presidents have used recess appointments to install officials who might have had trouble being confirmed by the Senate, and have done so not only between sessions of Congress but during routine congressional vacations as well. Yet in the first two years of this administration, even though the Senate has been controlled by Democrats, President Obama has several times made such appointments in ways that have been particularly controversial.
The foremost example is his recess appointment of Dr. Donald Berwick to head the Centers for Medicare and Medicaid Services at HHS. Given the intensity of the health-care debate that has raged since the beginning of Obama's term, his choice of CMS director was bound to be mired in controversy. Berwick himself, moreover, was particularly likely to provoke such contention, as he has praised British-style health-care rationing, which Obama's opponents insist is the ultimate goal of his health-care law. To avoid complicating the administration's efforts to get that law enacted, Obama failed to nominate anyone to the position of CMS director for the first 15 months of his administration — leaving that critical post empty despite calls, from both sides of the aisle, for the administration to send the Senate a nominee. Once the law was enacted, Obama nominated Berwick — but then gave him a recess appointment so swiftly that the candidate didn't even have time to finish filing his paperwork. The urgency, presumably, was part of an effort to avoid unwelcome questions about the law's consequences for Medicare and Medicaid in Berwick's Senate confirmation hearings.
Democratic senator Max Baucus, chairman of the Senate Finance Committee (which oversees CMS), was so offended by the Berwick recess appointment that he publicly criticized the move — a rare instance of a committee chairman rebuking a president of the same party. Indeed, by fostering such rancor, the recess appointment may have been counterproductive: Berwick appears to have been significantly weakened by it, and he appears in press conferences or interviews far less frequently than his predecessors — presumably for fear that he will be asked about his controversial views and the nature of his appointment. News reports also suggest that his relationship with members of Congress of both parties has been decidedly cool. And it is likely that the nature of the appointment has even made it impossible for Obama to get anyone — Berwick or a different candidate — formally confirmed to the CMS director post for the remainder of the administration.
Obama has also circumvented the Senate in a number of other controversial cases. Alan Bersin, chosen last year to lead U.S. Customs and Border Protection, gave so many inconsistent answers on his questionnaires regarding his use of domestic help that even Democratic senators questioned his veracity. And yet Obama still gave him a recess appointment, along with Berwick.
Mari Carmen Aponte was named ambassador to El Salvador, despite the fact that she had once been romantically involved with a man the FBI suspected of being a Cuban agent. During the Clinton administration, as a result of the relationship — and after refusing to submit to a polygraph test — Aponte failed to be confirmed as ambassador to the Dominican Republic. Her recess appointment last year was made over the strenuous objections of senators of both parties.
The financial regulatory reform law enacted last year created a new Consumer Financial Protection Bureau, the director of which must be confirmed by the Senate. President Obama sought to name Elizabeth Warren — a Harvard law professor known for her sharp criticisms of Wall Street — to the position. But when it became apparent that she would be a controversial choice in the Senate, he instead named her to a newly created "czar" post overseeing consumer protections in the Treasury Department — a position that did not require Senate confirmation. He still has not named a director for the new agency he and congressional Democrats created, and Warren now unofficially oversees its work from her Treasury post.
In all of these instances, President Obama flouted the informal rules governing the confirmation process and, in so doing, worsened an already unworkable situation. There is no question that the process leaves much to be desired, but circumventing it entirely — as Obama often has — only makes more difficult the reforms that the process so desperately needs.
THREE MODEST PROPOSALS
If such reforms could be achieved, what would they look like? The basic goals are straightforward. The sheer number of confirmations, which inevitably causes a glut, must somehow be brought under control. The Senate needs to act more quickly and decisively on confirmations. And the president needs to make his selection and vetting processes more efficient. None of these goals will be easy to achieve, of course, but three simple reforms could help tremendously.
First, Congress should significantly reduce the number of executive positions that require Senate confirmation. As noted above, the problem of volume in the confirmation process is a function of the growth of government; while reversing that growth would be nice, at this juncture, it is hardly a plausible path to reforming the confirmation process. Much more practical, then, would be an effort to reduce the number of executive-branch positions that take up the Senate's time.
Without question, the Senate will want to carefully consider and approve cabinet secretaries, their deputies, agency directors (like the heads of the FBI and Food and Drug Administration), and ambassadors. Senators may even wish to exercise their veto power over undersecretaries, who occupy the third appointed tier of most cabinet departments. But is it really necessary for the Senate to vote on hundreds of mid-level assistant secretaries and nominees to similar positions in various cabinet agencies? Must committees set aside meeting time, and the full Senate set aside voting time, to approve the assistant secretary for public affairs at one or another department — a position that basically involves serving as a press spokesman? Must the general counsel of each department and agency be put up for a vote? Must the director of the women's bureau in the Department of Labor, the deputy director of the National Science Foundation, or the inspector general of the Railroad Retirement Board take up the Senate's time?
Reducing the number of positions that require confirmation could be achieved only by enacting legislation to that effect. Thus Congress, in consultation with the administration, should introduce a bill seeking to modernize and update the list of Senate-confirmed positions, with the goal of reducing the number of positions subject to Senate approval by at least a third. The idea of such a reduction has come up in the Senate several times in recent years, but committee turf wars have always interfered, and such proposals have eventually been dropped. Most recently, in the opening weeks of the 112th Congress, the general outlines of such a reform were again proposed, this time by Republican and Democratic leaders. Members of Congress will of course want to debate the specifics of a reform bill, but they should certainly agree that now is the time to pursue such legislation vigorously.
Second, the Senate should enshrine some important reforms of the confirmation process in its own rules. Lawmakers should, for instance, commit to having the relevant Senate committee hold a confirmation hearing for each presidential nominee within two months of his nomination. And to enforce this rule, the Senate should create a new Committee on Confirmations. This new body would be structured like the Ethics Committee, which has equal bipartisan representation and comes together to act only as events warrant. It would be convened only if a nominee were held up for longer than two months in the committee that normally has jurisdiction over his appointment. In that event, the new confirmations committee would review the nominee in question and determine if any obvious disqualifying factors should prevent his confirmation. (This is a subjective matter, of course, but it is nonetheless some standard to meet.) Barring such factors, the nomination would then be sent to the full Senate for a vote.
The full Senate, moreover, should commit to holding an up-or-down vote within one month of a positive committee vote (either in the committee of jurisdiction or the new Committee on Confirmations). The result would be more regular confirmation votes, thereby avoiding the practice of letting votes pile up and pushing through only a few nominees right before congressional recesses. In addition, the Senate should prohibit the placement of anonymous holds on executive-branch appointees. Ending this practice would recognize the need for lawmakers to show at least some modest deference to the president in his personnel choices, and also the need for senators to offer clear, public arguments for rejecting nominees if they believe such rejections are truly warranted.
Finally, the White House should dramatically streamline nominee paperwork requirements and allow vetting to be carried out more transparently and efficiently. To avoid unnecessary duplication, nominees should have to fill out only one disclosure form and questionnaire, which could be completed electronically and would be made available to the relevant executive-branch vetting agencies (the FBI and the Office of Personnel Management) as well as to the relevant Senate committees. The new form should be as simple as possible, asking questions primarily about the candidate's education, relevant experience, accomplishments, and any criminal history and direct financial conflicts.
Beyond these reforms, the improvement of the confirmation process would require major attitude adjustments on Capitol Hill and in the White House. Senators should be more deferential to presidential wishes when it comes to administration personnel, regardless of the president's party. The president, meanwhile, should strive to avoid recess appointments and other means of circumventing the process; he should also be more respectful of the Senate's prerogatives. But such changes in attitude cannot simply be willed: Often, they require institutional reforms that, by demanding consistent and discrete acts of compliance, eventually produce in elected officials a better overall standard of behavior. The changes suggested above would therefore help advance this crucial aim as well.
PROMOTING A JUDICIOUS CHOICE
Surveying the confirmation process set forward in the Constitution, Alexander Hamilton wrote that "[i]t is not easy to conceive a plan better calculated than this to promote a judicious choice of men for filling the offices of the Union." In the intervening centuries, however, the government has grown more vast and powerful; senators have come to use delay as a political weapon; and confirmation battles have often become political spectacles. As a result, the process no longer works as intended. Indeed, as presidential scholar Alvin Felzenberg put it a few years ago, "all who have participated in or observed the process agree that [it] is a problem crying out for a solution."
The solution is to recover the original purpose of the confirmation process for executive-branch officials — to allow the president to staff his administration with capable men and women of his choice, while also denying him the power to name patently unsuitable candidates or to use government jobs as instruments of corruption or graft.
Such a restoration will, of course, be no easy feat. But it can be achieved, if Congress and the president do as the framers demanded when they first established the process. Only by cooperating despite institutional and political tensions will our elected officials preserve the framers' design — a design wrought in the hope that our government might be well run, and thus that our nation might be well governed.
Tevi Troy is a senior fellow at the Hudson Institute and a former senior White House aide. In 2007, he was unanimously confirmed by the United States Senate as deputy secretary of Health and Human Services.