Picture, in your mind, a presidential appointee waiting before the Senate, waiting for confirmation to his post. Or, better: picture all of them, sitting in that room, lined up and waiting for a vote.
There's two things you probably got wrong about that image. First, the odds are very good that the person waiting for that Senate vote was not someone who would end up serving as a judge. And, second, you were almost certainly underestimating how many people were in that room.
The Supreme Court's decision on Thursday to reject President Obama's appointment of three National Labor Relations Board commissioners in 2012 was fairly limited in its scope. In short, the Court legitimized the Senate's tactic of holding seconds-long sessions in order to avoid going into recess -- and,in so doing, preventing Obama from making appointments during those recesses.
There are (at least) two political fronts on which President Obama and Congress are battling over appointments, beyond the actual appointments themselves. The NLRB appointments, aimed at staffing up the agency in the face of obstructions from Senate Republicans, has been rolled into the argument that Obama abuses his executive power, an argument that reached a new and more perilous stage on Wednesday, as House Speaker John Boehner declared his intention to sue the president. The other front is over the Senate's ability to filibuster appointees. Last fall, Senate Democrats exercised the so-called nuclear option, changing the rules of the chamber to prevent Republicans from filibustering presidential appointees.
The Democrats did so largely in order to fill long-empty positions on the federal bench. For a while last year, "presidential appointments" became all-but-synonymous with "judicial nominations" as the two parties fought. A Congressional Research Service report from June 2012 articulated why Democrats were likely frustrated. For example: "During the Obama presidency thus far, fewer circuit court nominees have been confirmed by the Senate than were confirmed during the first terms of any of the four preceding Presidents."
The "nuclear option" didn't entirely resolve the backlog in the judiciary. As of today, there are two dozen nominees waiting for appointment, many of whom have been waiting since January. In total, 57 vacancies need to be filled.
But the larger problem, in each sense of the word, is all of the other appointments. At the beginning of last year, ProPublica tallied the number of vacancies throughout the government, finding that "a greater share of presidentially appointed positions that require Senate confirmation were sitting vacant at the end of Obama’s first term than at the end of Bill Clinton’s or George W. Bush’s first terms."
ProPublica's tally was based on the "Plum Book," a document produced by the government every four years that lists positions requiring appointment, among other things. And here we get to the scale of the situation. ProPublica counted up vacancies in 94 government offices, assessing how many of over 1,200 positions requiring Senate approval still needed to be filled. If the Senate approved one of those nominees each day of the year, including holidays, it would take three years and 100 days to approve them all.
At that point, the average vacancy rate for the agencies was about 17 percent. We went back and checked some of the figures, to see how the problem had changed.
|Agency||Feb. 2013 vacancy rate||Current vacancy rate|
|Consumer Financial Protection Bureau||100%||0% (1 of 1 filled)|
|Consumer Product Safety Commission||20%||40% (3 of 5 filled)|
|Peace Corps||0%||50% (1 of 2 filled)|
|Federal Housing Finance Board||100%||0% (1 of 1 filled)|
|Government Printing Office||100%||0% (1 of 1 filled)|
|Library of Congress||0%||0% (1 of 1 filled)|
|Office of Government Ethics||100%||0% (1 of 1 filled)|
|United States Election Assistance Commission||100%||100% (0 of 4 filled)|
|Federal Labor Relations Authority||25%||25% (3 of 4 filled)|
That's nine of the 94 agencies that ProPublica looked at. Two-thirds of them have had some sort of change in the level of vacancies, reinforcing that it isn't only 1,200 positions that are the problem, it's that -- as with any employment situation -- the pool of jobs that need to be filled is constantly churning.
During last year's debate in the Senate, Berkeley law professor Anne Joseph O'Connell outlined five ways in which appointments were misunderstood. The problem doesn't lie only with Senate reticence, she argued; Obama has been slow in nominating people to existing vacancies. She also argued that the problem was less that there were so many positions to be filled as it was that people left the positions relatively quickly. If those 1,200 people stuck around, less of a need to appoint a replacement would exist.
By the way, if you're interested in any of the rotating cast of positions, good news. There's a White House website (that appears to date back a few years) where you can apply for positions. Two words of advice, though. First, it would help if you knew a senator. And, second, it would help if you could get Obama to fast-track it.