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Post Partisan
Posted at 12:21 PM ET, 11/20/2012

Cass Sunstein gets it on executive-branch nominations

Cass Sunstein has a terrific commentary today about the broken executive-branch nomination process, which he accurately calls “a disgrace.”

As he points out, the result is that government is left without people to carry out important tasks and presidents wind up thinking more about who is easily confirmed rather than who would be best for the job.

Moreover, Sunstein is exactly right that the damage extends further, to all those who lose all interest in serving the nation because of the brutal process necessary to get a job in the first place.

I have only one thing to add, and one mild disagreement. Sunstein puts all the blame on the Senate. He’s right that confirmation is broken, but so is the appointment process; presidents have been far too cautious and risk-averse.

The truth is that politically embarrassing revelations, before or after a nominee is confirmed, typically produce one-day stories that do little or no damage to a president. Yet over-vetting, in order to clear the pool of anyone who might have something in her background, winds up knocking out lots of good people, too.

Presidents certainly should try to avoid appointing crooks or people who can’t do the job, but that shouldn’t require such close examination.

My disagreement is with Sunstein’s objection to holds by individual senators or small groups. Yes, holds can slow down the process. But they’re part of the way that local or smaller interests can be addressed within the system. I have no problem with a senator using the leverage the nomination process offers him to bargain over some policy point, especially if it’s relevant to the office in question — as long as there’s good-faith bargaining going on, rather than just delay for delay’s sake.

Beyond that, however, I agree completely with Sunstein that “Within broad limits, the president, whether Republican or Democratic, is entitled to select his own staff. So long as the president’s choices meet basic standards of character and competence, the Senate should be reluctant to stall or stop them.” In terms of procedure, that should mean confirmation by a simple majority of all senators present and voting, not a 60-vote supermajority. And in terms of behavior, senators should return to what always worked and simply vote to confirm except in rare, extreme circumstances.

President Obama could help things along by finding a way to reduce vetting on new appointees. But the biggest thing needed to fix the broken process is for the Senate to either eliminate filibusters on executive-branch nominations or, perhaps, to keep the cloture system but to require a simple majority to move to a vote. That’s the easiest plank in the Senate reform package that members should consider in January on the first day of the 113th Congress in January.

By  |  12:21 PM ET, 11/20/2012

 
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