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.
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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.