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?”
Nor can we ignore the deterrent effect of the confirmation process on honorable and highly qualified people. They might view the prospect of a presidential nomination as an honor and privilege, but too nightmarish and battering to try to get through.
Both Republicans and Democrats have contended that because federal judges have life tenure, and don’t work for the president, it is legitimate for the Senate to give careful scrutiny to judicial nominees. Fair enough (though even for selection of judges, the line should be maintained between scrutiny and recalcitrance).
For executive branch officials, the assessment must be different. Those officials work for the president. Within broad limits, the president, whether Republican or Democratic, is entitled to select his own staff. So long as the president’s choices meet basic standards of character and competence, the Senate should be reluctant to stall or stop them — much less to use the confirmation process to extort presidential favors or changes in policy.
The Senate should take three steps to remedy the situation.
First, it should reduce the intensity of its scrutiny. To that end, Democrats and Republicans should agree to adopt a strong presumption (rebuttable, but strong) in favor of confirming executive branch nominees.
Second, the Senate should amend its rules to forbid a single senator, or a small group, from placing a hold on a nominee to an executive branch position.
Third, the Senate should ensure that every executive branch nominee is given a prompt up-or-down vote, probably within two months of the nomination date (with an exception for extraordinary cases involving genuinely serious issues that require longer periods).
Starting from scratch, no sane person could propose the current confirmation process, which is a parody of the constitutional design. The problem, of course, is that when the president is a Republican, Democratic senators have no short- term incentive to fix it. The same is true for Republican senators when the president is a Democrat. Sometimes it’s hard to solve long-term problems, and sometimes it’s really easy. With respect to the confirmation process, we need a sensible, not-so-grand bargain, and we need it now.
(Cass R. Sunstein, the Felix Frankfurter professor of law at Harvard University, is a Bloomberg View columnist. He is the former administrator of the White House Office of Information and Regulatory Affairs, the co-author of Nudge and the author of Simpler: The Future of Government, to be published in 2013. The opinions expressed are his own.)