Fixing the Confirmation Process Tevi Troy n MAy 2007, when I was nominated by President George W. Bush Ito 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 mark- edly 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 staff- ing an administration — making hiring decisions to fill departments and 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. 82 Copyright 2010. All rights reserved. See www.NationalAffairs.com for more information. Tevi Troy · Fixing the Confirmation Process 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 effective- ness 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 theWashington 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 devas- tating had the outbreak been more severe. Even when a nominee does eventually get confirmed, the process in- volved 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 im- prove 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. 83 Copyright 2010. All rights reserved. See www.NationalAffairs.com for more information. NAtionAl AffAirs · Spring 2011 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 pro- vided for, and which shall be established by Law.” As the writings of the framers make clear, the purpose of involv- ing the Senate in this process was to prevent the distribution of government jobs as political patronage. Senate concurrence in execu- tive 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 lati- tude 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 ac- tions 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 rati- fication or rejection. With very few exceptions (including Abraham Lincoln, who often actively involved prominent senators in his person- nel judgments), this is how subsequent presidents have approached the appointment process as well. 84 Copyright 2010. All rights reserved. See www.NationalAffairs.com for more information. Tevi Troy · Fixing the Confirmation Process 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 rejec- tion 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 ques- tions 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 under- secretaries, 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 85 Copyright 2010.