In his State of the Union address, President Trump blamed the Republican-controlled Senate for foot-dragging on his political appointees.
“This new era of cooperation can start with finally confirming the more than 300 highly qualified nominees who are still stuck in the Senate — some after years of waiting,” he said Tuesday. “The Senate has failed to act on these nominations, which is unfair to the nominees and to our country.”
The Republican president didn’t mention the many positions that remain unfilled because he hasn’t sent nominees to the Senate.
Of 705 key political positions requiring Senate confirmation, 144 have no nominee, according to an appointments’ tracker published by The Washington Post and the Partnership for Public Service, a nonpartisan good-government organization. About 54 percent of Trump’s civilian nominees, not including judges, have been confirmed. That compares with President Barack Obama’s 77 percent at the same point in his presidency.
“This administration has been the slowest at filling the jobs the first time around and the administration with the most turnover,” said Max Stier, the Partnership’s president and chief executive. “The turnover is highly costly not only for those positions, but there also usually is a cascade impact” on positions lower in the agencies.
In many agencies, positions are filled by “acting” individuals who do the work needed until a confirmed official is in place. While the acting leaders have full authority on paper, they face limitations in practice. Stier compared acting officials to substitute teachers who might be excellent educators, but they aren’t going to approach their roles with a long-term focus or as big problem solvers. “They’re not going to be perceived as having the same level of authority,” Stier added, “as someone who was nominated and confirmed by the Senate.”
There are no officials, acting or otherwise, in two essential slots at the Merit Systems Protection Board (MSPB). It’s a small, quasi-judicial agency with an important mandate: to safeguard the merit principles that are designed to foster a nonpartisan federal workforce. The board hears appeals of disciplinary actions taken against federal employees.
“The MSPB performs an essential role to the quality of self-governance in our democratic form of government,” said Steve Katz, who was chief counsel to the MSPB chairman from 1993 to 1997. As an independent, bipartisan agency, it “exists to protect the political neutrality of the federal workforce.”
But the three-member board has had only one member for more than two years. The term of Mark A. Robbins, the acting chairman, ends March 1. Without a quorum the board can accomplish nothing.
Doing nothing is demonstrated by MSPB data. On Jan. 7, 2017, there were 11 petitions for review waiting board action. By Jan. 31 this year, that number jumped 155 times to 1,708.
But unlike many other positions in the Trump administration, there are nominees for the MSPB board. They are scheduled to be voted on by the Senate Homeland Security and Governmental Affairs Committee next week. The nominees didn’t get through the committee last year. They might make it this time, however, because the Republicans have a larger majority.
In November, all seven Democrats on the panel voted against Andrew F. Maunz, a Social Security Administration lawyer. All seven Republicans present voted for him, creating a tie. Committee Chairman Ron Johnson (R-Wis.) then decided not to bring up the other two nominees for a vote. That meant the board continued to be stranded.
The current situation “is disastrous for whistleblowers,” said Tom Devine, legal director of the nonprofit Government Accountability Project. A functioning MSPB is “their main chance to obtain temporary relief for cases that frequently take over five years to decide. Second, it is a loud and clear signal that Congress is not serious about the due process infrastructure to enforce the free speech it unanimously has passed four times in the Whistleblower Protection Act. Third, the MSPB has the accumulated experience and expertise properly to review initial Administrative Judge rulings, unlike appellate court judges who may only hear one or two government or corporate whistleblower cases per year.”
Johnson doesn’t sound optimistic about the vote on Wednesday.
“I will continue to work with my colleagues and the administration to help ensure the Merit Systems Protection Board has the three confirmed members needed to function properly,” he said by email. “If that is not possible, I will support legislation that extends the term of the last remaining board member as a short-term solution.”
While Trump’s record on filling executive branch political positions is not good, he is very proud of his success in placing many judges on the federal bench. “President Trump has installed a historic number of federal appeals court judges for this point of a presidency,” said an article posted Monday by my colleague Ann E. Marimow. On Thursday, the Senate Judiciary Committee advanced 44 judicial nominees, despite complaints by Democrats.
Trump and Sen. Mitch McConnell (R-Ky.), the Senate majority leader, made federal judges, who can serve for life, a priority over agency leaders who come and go. Plus, Trump apparently prefers acting officials.
“I like acting, because I can move so quickly, he said during a CBS interview broadcast Sunday. “It gives me more flexibility.”
It also allows him to avoid constitutional niceties like the Senate confirmation process.