On Nominations, What’s Needed Is Informed Consent

Posted May 24, 2005 at 3:17pm

This week’s bipartisan compromise on judicial nominations notwithstanding, the Senate long ago dropped the ball on fixing the presidential appointments process. Whether the nominees are executive or judicial, they, and the public, deserve a better system — one that is fair and reflects the honor of these important positions.

For several years, the Senate has squandered opportunities to make meaningful changes that speed up and smooth out today’s broken process. The disappointing history of failed efforts to reform the executive appointments process shows how difficult it is to change Senate rules and practices. That may be justifiable for judicial nominations, which are lifetime appointments, but executive posts are not, and those problems should be easier to fix.

The controversial nomination of John Bolton as ambassador to the United Nations has taken a back seat as the focus has shifted to judicial appointments. But when the Senate revisits his confirmation, the chamber should also agree to fix the process.

Ironically, Bolton’s confirmation process has been an example of what the Senate’s role of advice and consent should be. Unfortunately, that is often not the case, so it is a reminder of other nominations that are delayed or blocked for reasons completely unrelated to a candidate’s fitness for office — and a reminder of why the Senate needs to act.

Advice and consent means asking tough, relevant questions when evaluating a nominee’s competence, in order to make a knowledgeable decision on the vote. Politicians should be expected to follow the same rule doctors use when they provide patients with necessary information prior to making a decision about medical care. Getting the facts straight before voting is like ensuring informed consent in the confirmation process: It is in the public interest, and it is the Senate’s Constitutional duty.

Sen. George Voinovich (R-Ohio) was sufficiently concerned about Bolton’s qualifications that he forced a delay of the Senate Foreign Relations Committee vote to have more time to investigate allegations of mistreatment of subordinates, questionable handling of intelligence, and providing misleading information to the committee. When Voinovich concluded that he could not in good faith make a favorable recommendation, Voinovich agreed to allow the nomination to be sent to the Senate floor without a recommendation.

Voinovich voted his conscience based on his judgment of the nominee’s fitness to serve — not on partisanship — and he did so on the record. And rather than kill the nomination in committee, he allowed what nominees want most in the process, but some never get: a fair chance for an up-or-down vote on the floor of the Senate. But just as Bolton cleared one obstacle on the rocky road to confirmation, another appeared when Sen. Barbara Boxer (D-Calif.) placed a hold on his nomination and asked for more information.

Voinovich has long been a leader in appointments reform, and his actions on Bolton’s confirmation reflect his efforts to improve the integrity of the process and to ensure that appointees are qualified regarding leadership and management capabilities. In August 2000, in response to a request by Voinovich, the Government Accountability Office developed a list of questions that Senate committees can use to help determine the management capabilities of appointees.

In April 2001, the panel then known as the Senate Governmental Affairs Committee held hearings on reform proposals, and Voinovich introduced legislation that later stalled in the Senate. He did manage to get some improvements included in the post-Sept. 11, 2001 intelligence reform bill, but only for national security positions.

Meanwhile, individual Senators can still place anonymous holds on nominees, essentially keeping them hostage for extended periods, often to extract a concession from the administration that has nothing to do with the nominee. Committee practices in the Senate can also derail a nomination for reasons unrelated to competence. This can leave critical positions in government vacant, with no one to hold accountable for the delays. Such flaws in the system also contribute to nominees having to wait more than eight months, on average, to enter office.

Now is the time for the Senate to make the confirmation process transparent by requiring public disclosure of Senators who place holds on nominations, and why. The imposition of a hold by any Senator should be directly related to the nominee’s fitness to serve, and should be limited to a total of no more than 14 days to resolve the issue. The Senate should require a vote on confirmation within 45 days after receipt of a nomination, and allow nominations to be reported out of committee without a hearing, upon the concurrence of a majority of committee members of each party.

The Senate should heed the advice of the late Sen. Daniel Patrick Moynihan (D-N.Y.). As it happens, Moynihan once served as ambassador to the United Nations and also argued for the confirmation of Richard Holbrooke to the same position, a process that took 14 months. Moynihan reminded his colleagues that nominees should be judged based on their qualifications, not their politics, saying, “a president is entitled to and must have his own counselors. Be they right-minded or wrong-minded … I plead with the Senate to respect this prerogative of the other branch.”

Voinovich’s stated intention to vote against Bolton’s confirmation based on qualifications is his proper constitutional duty of advice and consent — informed consent. That is not always the case, however, and the Senate should fix the process now. Like physicians, the Senate should first do no harm.

Carole M. Plowfield is a former deputy director of the Brookings Institution’s Presidential Appointee Initiative and is currently in the graduate program at the Georgetown Public Policy Institute.