The Presidential-Appointee Problem

Government deadlock and nasty partisan politics prevent important positions from being filled. 

In the current issue of The National Interest, James Kitfield predicts that deadlock between the congressional and executive branches of government will continue, with deleterious consequences for U.S. foreign policy. “The congressional opposition will keep stubbornly obstructing the president's foreign-policy initiatives out of a sense of duty and ideology, and the perceived erosion in the quality of U.S. global leadership will persist,” he notes.

This has manifested itself, especially in the last several presidential administrations, in the delays and problems in getting executive-branch nominees—including subcabinet posts and ambassadorships—confirmed in a timely manner. Take Carlos Pascual, nominated in February to be assistant secretary of state for energy resources, a new bureau created to focus on an area that increasingly is driving possible conflicts all over the world, from the disputed offshore zones off of Cyprus to the South China Sea. The Senate adjourned earlier this month for its August-September recess without acting on Pascual’s nomination. The Senate also chose not to move forward with the nomination of a new ambassador to Pakistan, arguably one of America’s most critical bilateral relationships.

As a result of such delays, key positions can remain unfilled for months—or might be held by holdovers or temporary appointees who are more inclined to simply “mind the store” rather than break new ground. The difficulties of the confirmation process also can cause qualified people to decide that it is not worth it to have their names put in nomination in the first place—given the trials and tribulations of dealing with what often can seem like the capricious whims of individual senators.

The Constitution only requires the “advice and consent” of the Senate; it does not specify any details as to how this comes about. George Washington deliberately interpreted the relevant constitutional clause to mean that the Senate would offer its opinion only after the president had made a nomination; he recognized no automatic presumption that the Senate should be able to present a list of potential candidates. Andrew Johnson’s impeachment trial settled once and for all the point that executive-branch appointees work at the pleasure of the president—and the chief executive does not need Congressional permission to fire or replace those who work for him.

Over the years, a number of senatorial traditions have emerged that guide the confirmation process. In recent years, one of the most notorious has been that of the anonymous hold—the ability of one member of the Senate to prevent action on a nominee from moving forward. The ability of a senator to stop cold the confirmation process also has been used as a way to gain political leverage vis-à-vis the executive branch. But none of this is constitutionally sanctioned.

At the same time, another senatorial tradition has strongly eroded, particularly in the hyperpartisan atmosphere of recent years. Former Oklahoma senator David Boren noted that, in the past, most members of the Senate started from the presumption that “the President should have the ability to select those people that he wants to work with him hand in glove.” This is not always the case now. And when a president cannot get his nominees through the process in a speedy fashion, the business of the country suffers.

A way forward, therefore, would be to change the confirmation process. The system used for the so-called “123 agreements” (named after the relevant section of the United States Atomic Energy Act of 1954), which create nuclear partnerships between the United States and other states, could be used as a template. After the executive branch signs a 123 agreement with another country, it must then transmit the pact to Congress. This starts a ninety-day clock, during which time hearings are held, inquiries made and the background investigated. By the ninetieth day, unless Congress has passed a resolution blocking or putting conditions on the agreement, it goes into force.

I agree with Senator Boren that because of the special nature of judicial appointments—particularly lifetime tenure and because judges possess the power to review laws for their constitutionality—it is wholly appropriate that “a higher standard” of scrutiny prevail and the current system allows for it. In the case of subcabinet officers and other political appointees, as well as ambassadors, who are explicitly described as “personal representatives of the president,” a more streamlined approach seems merited. Under this revised system, the president would send his nominees to the Senate for consideration, starting a ninety-day clock. Nothing would prevent the Senate from holding hearings or assessing the fitness of a nominee for service, and nothing would preclude the Senate from confirming a nominee rapidly for office (for instance, a cabinet officer). However, if by the end of the period the nominee has not been explicitly blocked, the nomination would be automatically confirmed. Safeguards could be written into the process to ensure that the Senate’s prerogatives were upheld, for instance, waiving the ninety-day deadline in the event a nominee fails to produce documents or does not respond to queries from senators and is trying to run out the clock.

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