Anne Joseph O’Connell is associate dean for faculty development and research and a professor of law at the University of California at Berkeley.
Our Constitution says presidents must execute laws passed by Congress. But what if the Senate won’t approve the people supposed to do the executing? A stalemate over this quandary ended this past week when Senate Democrats and Republicans struck a deal to confirm some of President Obama’s stalled nominees to agencies such as the Consumer Financial Protection Bureau. But before we move on from this crisis, let’s tackle some misunderstandings about presidential appointments.
1. It’s the Senate’s fault that important agency positions and federal judgeships are vacant.
It is certainly disconcerting that the GOP, the Senate’s minority party, blocks up-or-down votes on presidential nominees, a tactic that until recent administrations was reserved for exceptional cases. Presidents, however, bear considerable responsibility for vacancies because they take so long to make nominations. At least since George H.W. Bush was commander in chief, presidents have taken more than twice as long at the start of their administrations to come up with executive agency nominations as it has taken the Senate to confirm them.
The difference between nomination and confirmation times is usually not as stark for judgeships. For the Supreme Court in recent decades, confirmation tends to take longer than nomination, but for seats on many lower courts, the president moves slower than the Senate. The Congressional Research Service found that as of Jan. 19, Obama had nominated candidates for just 31 of 81 open federal district and circuit court spots. Senators are part of that problem: The White House customarily does not nominate judges without the approval of a home state’s senators, and a majority of the 50 positions without a nominee were in states with at least one Republican senator. But Obama isn’t blameless.
2. Cutting the number of Senate-confirmed positions is the best long-term solution.
Good-government commissions such as the Twentieth Century Fund Task Force on the Presidential Appointment Processand the 9/11 Commission lament the number of jobs requiring Senate confirmation and recommend reducing it. Under the appointments clause in Article II of the Constitution, however, only Congress can eliminate the confirmation requirement for some important agency positions — and Congress is generally unwilling to give up influence.
The bipartisan Presidential Appointment Efficiency and Streamlining Act of 2011 managed to eliminate Senate confirmation for 163 jobs, leaving the president to select those individuals on his own. Few of those positions, however, were controversial. They included, for example, 24 members of the National Science Board, 20 members of the National Museum and Library Services Board, 15 members of the National Board of Education Sciences and 10 members of the National Institute for Literacy Advisory Board.
A better way to reduce vacancy rates would be to get appointees to stay in their jobs longer. Rapid turnover is a long-standing problem: A staff member for President Dwight Eisenhower reportedly quipped that appointees stay a “social season and a half and then leave.” He may have been exaggerating, but turnover is still very high. In the past five completed administrations, Cabinet secretaries’ tenures averaged 3.2 years, but their deputies left about every two years. Administrations should push nominees to commit to a certain number of years in office and support them so they want to stay.
3. Agencies cannot operate without Senate-confirmed leaders in place.
Top agency positions are left vacant when nominations and confirmations lag, but their functions are not usually neglected. In many cases, an acting official is at the desk. The Federal Vacancies Reform Act of 1998 allows temporary officials to wield full authority in most agencies (but, critically, not in top jobs in independent regulatory commissions such as the National Labor Relations Board). The law limits how long these acting officials can serve, but many agencies operate by delegating responsibilities to other officials, even after these periods expire.
For example, June 10 was the final day acting Commissioner Daniel Werfel could head the Internal Revenue Service with that title. That day, Obama named him principal deputy commissioner and deputy commissioner for services and enforcement, which is now the top IRS position. Furthermore, once Obama submits a nomination for the commissioner’s job, the law allows it to be filled by an acting officer, so Werfel’s title may change again.
4. Judicial nominations are usually controversial.
It depends on the court. Confirmation rates tend to be lower for appellate court judges than for members of independent regulatory commissions and boards — the agency nominees battling the lowest confirmation odds — but higher for district court judges.According to the Congressional Research Service, the past five presidents ranged in their success on first-term nominees to appeals courts, from 67.3 percent to 86.8 percent. The rates are higher for district courts, from 76.9 percent to 95 percent. Obama fares next-to-lastin each category.
The process also matters, and delays seem to be increasing. Before the Clinton administration, it was unusual for the Senate to conduct a roll-call vote on a lower-court nomination — a tactic that can delay confirmation. Meanwhile, Obama is the only modern president whose nominees for district and appeals courts have taken, on average, more than half a year to confirm.
5. Refusing to confirm presidential nominees is a fair way to rein in government.
Before the compromise reached this past week, Sen. Lindsey Graham (R-S.C.)refused to confirm nominees to the NLRB after the agency sued Boeing over a new plant in his home state. The agency alleged that the company illegally moved work to South Carolina to retaliate for strikes by employees in Washington state. Graham and others hoped to cripple the agency — as did Democrats who used similar tactics in the final months of President George W. Bush’s administration to delay a more conservative NLRB. (Boeing eventually settled with the agency, agreeing to create more unionized jobs in Seattle.)
In independent commissions not covered by the Vacancies Reform Act, such tactics can create great delay and uncertainty. But unless Congress repeals the laws governing those entities, their work remains necessary. For example, courts’ caseloads are not reduced to account for judicial vacancies, and disputes between workers and management must still be resolved when the NLRB is hamstrung.
Graham conceded this past week that the confirmation process is not a proper way to change government obligations. He said that Richard Cordray — nominated to head the Consumer Financial Protection Bureau, created in 2011 under the Dodd-Frank Wall Street Reform and Consumer Protection Act — “was being filibustered because we don’t like the law. That’s not a reason to deny someone their appointment. We were wrong.”