By Cass Sunstein

The Terrible, Horrible, No-Good Confirmation Process

November 25, 2012 8:12 pm Category: Bloomberg View, Memo Pad 8 Comments A+ / A-
The Terrible, Horrible, No-Good Confirmation Process

The U.S. Senate confirmation process is badly broken. In fact it is a disgrace. It needs to be fixed. There is no time like the present.

To appreciate the problem, let’s begin with an example. It is September 2010. The universally respected and admired Jack Lew, nominated by President Barack Obama in July for the crucial position of director of the Office of Management and Budget, can’t get a floor vote for Senate confirmation. The reason? Louisiana senator Mary Landrieu, a Democrat, has placed a “hold” on his nomination — the equivalent of a filibuster, preventing a vote unless the Senate can muster a two-thirds majority (and schedule plenty of time for debate).

Landrieu has no questions about Lew’s character or qualifications. On the contrary, she doesn’t have a single negative word to say about either. Her objection is that in April, after the oil spill in the Gulf of Mexico, the Obama administration imposed a temporary moratorium on offshore drilling. As everyone knows, the director of the Office of Management and Budget didn’t make that decision, and the director would have no power to unmake it.

For several long months, a crucial position in the president’s cabinet isn’t filled. Landrieu finally lifts her hold on Nov. 18, when she becomes satisfied that the Obama administration has gotten rid of the moratorium. Landrieu explains, “I figured it would get their attention and I think it has.”

When Landrieu (a Democrat, no less) blocked Lew’s appointment, she was playing within the rules. Republican senators have used the same rules to do far worse. They required a cloture vote to overcome their opposition to Robert Groves, a superb nominee who eventually served with distinction as director of the U.S. Census Bureau.

They were able to prevent a floor vote for Donald Berwick, the immensely qualified nominee to lead the Centers for Medicare and Medicaid Services. (Obama had to give Berwick a recess appointment, and he was able to serve for only an abbreviated period.) They succeeded in blocking confirmation of Peter Diamond, the Nobel-winning economist, nominated to serve on the Federal Reserve Board.

The largest problem is the broad pattern, not individual cases. Republican senators have subjected numerous Obama nominees to lengthy delays (disclosure: I was among them), and they have prevented some of those appointees from being confirmed, even though they had no reasonable basis for doing so. The structural problem seems to be getting worse, and it isn’t the product of one party: Under Republican presidents, Democratic senators have sometimes been far too aggressive as well.

An unfortunate consequence of Senate obstructionism is that important offices can remain unfilled for long periods. An entire presidential term is just four years, and many high-level appointees end up serving for less than that. If the Senate delays confirmation for six months or more, a significant chunk of an appointee’s total time in office is lost.

The confirmation process also has a damaging effect on the president’s thinking. His question can’t only be, “Who would be the best person for the job?” It must also be, “In light of the ugliness and stupidity of the confirmation process, who is going to get through?”

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The Terrible, Horrible, No-Good Confirmation Process Reviewed by on . The U.S. Senate confirmation process is badly broken. In fact it is a disgrace. It needs to be fixed. There is no time like the present. To appreciate the probl The U.S. Senate confirmation process is badly broken. In fact it is a disgrace. It needs to be fixed. There is no time like the present. To appreciate the probl Rating:

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Comments

  • nobsartist

    Appoint them all while they are on christmas vacation like bush did.

    • http://www.facebook.com/people/Kay-F-Ferguson/1611135655 Kay F. Ferguson

      Better than that, appoint them like Obama czars and not congressionally vet them at all.

      • nobsartist

        You mean like members of the bush crime family?

  • http://www.facebook.com/dominick.vila.1 Dominick Vila

    Some of the tactics being used by our senators and congressmen are nothing less than bribes to get concessions on issues important to their constituents. Not only should we ban the use of tactics like this, we should also get rid of the filibuster. The latter is routinely used by the minority to block legislation, not because it is not in the best interest of the country, but to score points and enhance re-election chances.

  • CPANewYork

    Excellent article. Obama should make them appointments. So what if they’re not confirmed by Congress? “Everyone” knows that Congress is presently “constipated” and can’t get much if anything done.

    It prestige among the American public is so low that its confirmation of any nominee is virtually meaningless.

  • a80a

    I agree with nosartist. during any congressional recess just appoint whoever you want to serve ,or keep them in session the whole year. again I agree that bush made some appointments while congress was in recess, whats good for the goose is good for the gander.

  • onedonewong

    Once again we have a Harvard lawyer with no real world experience lecturing those who do. Cass would have made a valid point if he moved to reduce the number of attorneys appointed to agencies.
    The reason why appointments take so long is presidents nominate some one with O experience

  • montanabill

    Where was Cass during the Bush years? Hypocrite. Power fluctuates between the parties, so be careful about demanding powers that you would not grant to the opposition. This article is probably good for stirring up the illiterate masses, but that’s about it.

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