Paul Pillar

Abusing the Confirmation Process

David Rieff's commentary on Samantha Power's confirmation hearing is a trenchant account of some of the worst in what we see in the process of confirming nominees for senior positions. Even by the standards of such hearings, Power's performance was notably obsequious. This was an abuse of the process by the nominee, in the sense that in a proceeding ostensibly intended to learn more about the nominee we did not learn much at all except that she really, really wants the job of ambassador to the United Nations and is willing to shape her testimony in whatever way it takes to get the job.

Rieff cites the experience of Robert Bork as the master lesson for all subsequent nominees on the need to trim their views if they expect to get confirmed. That history is no doubt a factor, but to understand the pathologies of the confirmation process we should take note of the variety of ways in which that process gets abused. Many of those ways are not the work of nominees, but in at least one respect, as Power's case illustrates, they induce from nominees behavior that only adds to the dysfunction.

A conspicuous and recent abuse was the attempt to cripple the work of the National Labor Relations Board and the Consumer Financial Protection Bureau by refusing to bring any nominees for those bodies to a vote in the Senate. Threats from the Senate majority leader about exercising a so-called nuclear option won a temporary reprieve from that tactic, although there is no assurance we won't see it revived, and the chances are it will be. One of the participants in that tactic, Senator Lindsey Graham, later acknowledged that the nominee to head the Consumer Financial Protection Bureau “was being filibustered because we don’t like the law. That’s not a reason to deny someone their appointment. We were wrong.”

Even when the objective is not to cripple an agency or effectively vacate the law that created it, it has become commonplace for the confirmation process to be the vehicle for pursuing policy agendas that have nothing to do with the nominee. This is at best an irrelevance and a drag on the process. It becomes abuse when confirmation votes may be determined by it. The same Senator Graham started crossing this line last week when he used questioning of Admiral James Winnefeld, nominated for another term as vice chairman of the Joint Chiefs of Staff, to push the idea that the Iranian regime is still an awful and extreme beast despite the election to the Iranian presidency of Hassan Rouhani. At one point Graham said “this will determine how I vote for you” before asking whether Winnefeld thought Rouhani is a “moderate.” Even setting aside the issue of the substantive validity of what Graham was harping on, why should a military officer's view on this question determine his fitness to serve as vice chairman of the Joint Chiefs?

Nominees, especially those already serving in the executive branch, have somehow to make their responsiveness to questions not run afoul of policies that have already been set by the president, and not to make it seem that they are getting ahead of the president, forcing his hand, or openly criticizing him. And yet senators repeatedly and knowingly put nominees in that difficult position. At the same hearing last week of the Senate Armed Services Committee, John McCain did so with General Martin Dempsey, nominated for another term as chairman of the Joint Chiefs. McCain tenaciously tried to get Dempsey to say that the administration's policy on Syria was one of “inaction.” We should hope that the nation's senior military officer is giving his best advice in private to the president on military aspects of an important problem such as Syria, and we should expect that officer not to offer discordant characterizations of the president's policy in public. We should also hope that senior members of the Senate Armed Services Committee see the job of chairman of the Joint Chiefs in similar terms, regardless of their views about Syria or any other substantive issue.

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