Slow Confirmation Process Is Hurting U.S. Government

Posted June 23, 2009 at 2:44pm

More than five months into the new Obama administration, hundreds of key executive positions, across all departments, remain unfilled.

[IMGCAP(1)]As of May 31, only 151 of the 1,100-plus Senate-confirmable positions had in fact been confirmed by the Senate. To be sure, many of that total are confirmable to largely honorific posts. But if we simply boil it down to serious policymaking or implementing positions, the fill rate is still less than 25 percent. Some people no doubt will point out that this is still a better record than other recent presidencies; George W. Bush, for example, had only 129 nominations confirmed by the Senate by May 31 of his first year. But as I have pointed out before, the record of recent presidents in getting their administrations up and running across the board is very poor.

Of course, some of the problems lie within the administration itself, including longer vetting times as a result of new and expanded ethics rules; other delays are built into the contemporary nomination and confirmation process, including cumbersome paperwork at many levels and a ridiculous security clearance process (not ridiculous for Cabinet posts or anything involving sensitive issues, but overkill for many others).

But there is another arena for delay and denial as well: the Senate. Thirty-one important nominations have cleared all the other hurdles and are ready for votes in the Senate. They include a number of key positions, from legal counsel at the State Department to head of the Office of Legal Counsel at the Justice Department to head of regulatory affairs at the Office of Management and Budget to undersecretary for national protection and programs at the Department of Homeland Security to head of the Census Bureau to undersecretary of State for arms control.

Three nominations did make it through last week, all defense-related: Lt. Gen. Douglas Fraser as head of the U.S. Southern Command, Adm. James Stavridis as supreme allied commander for Europe and head of the U.S. European Command, and, most importantly, Gen. Stanley McChrystal as the commander of U.S. forces in Afghanistan. But none of the others, including some who have been twisting in the wind for many weeks, seems close to confirmation.

Why? The Senate is often very opaque in this area, but it certainly appears that Republicans have put individual, or perhaps blanket, holds on all these nominees. One of the reasons for opaqueness is the widespread and unpunished refusal of Senators to come clean with their holds — most remain anonymous, which is frankly outrageous.

A few of these nominees are controversial, including Dawn Johnsen at Justice and Robert Groves at the Census Bureau. But most of the controversial nominees, including Harold Koh as legal counsel at State, about whom I have written before, have clear support of more than 60 Senators. None is under a cloud because of scandal or questions about their intellect or qualifications. Many seemed clear to go and then found themselves in indefinite limbo.

This is a game, one that minority parties and at times even majority Senators play. Sometimes it is just to gum up the works for an administration of the other party, sometimes it is for legitimate policy reasons or serious questions, sometimes it is to hold innocent nominees hostage for completely extraneous reasons or for leverage over a policy position or guarantees from a Cabinet officer or from the president. In general — and in this case, specifically about the mass delays — it is simply wrong and also insensitive, while damaging the fabric of governance.

For one thing, Senators either ignore or dismiss the human cost to these delays. Each of these nominees is a human being who has sacrificed significantly to go into government service. Many have given up jobs; most have to move to Washington, D.C., from another state, selling houses and finding new residences; many have kids who need to be enrolled in school. It is simply cruel to play games with their lives for petty political gains. Every time this happens, it reduces the pool of top-flight people willing to serve; when they see what happens to their friends or peers, the attraction of government declines.

At the same time, governance is suffering, big-time. We need political appointees in place to make decisions and sign off on policies. Of course, there are talented career executives. But they often lack the authority, or the will, to make tough or controversial decisions that are not normally in their purview.

Some of the delays in implementation of the stimulus package have undoubtedly occurred because no official able to expedite the normal vetting process for projects or grants has been in place to do so. It is also important to keep in mind that incoming officials cannot start operating at 100 percent the day they are sworn in; it takes a while to learn the ropes and the procedures, so these delays will be even longer and more damaging than they appear.

Of course, Senate Majority Leader Harry Reid (D-Nev.) has a dilemma on his hands. He could call the GOP bluff and simply bring these nominees up for votes. He is doing so for Harold Koh today, a test case on whether the logjam can be broken. Several Republicans have indicated publicly their support for Koh. I hope they vote the way they said they would and will be joined by others who recognize his remarkable talents. And then I hope we see other remarkable talents, like Cass Sunstein at the Office of Management and Budget, freed at last.

If a few controversial cases are filibustered, so be it; that is a perfectly acceptable course if a number of Senators feel strongly about a particular nominee. But if the filibuster is used for capricious or simply obstructionist means, if even widely acceptable nominees are subject to multiple cloture votes at different stages and to more debate after cloture as allowed under Rule XXII, then that tactic should be widely condemned and may be even a call for reform of the rule. I don’t mean a “nuclear option,— or anything drastic, but a reduction in the number of filibusters allowed on any given bill or nomination and a reduction in the hours of post-cloture debate.

And maybe, after this mess is cleared up, we can get to a bipartisan effort to reform the nomination and confirmation process for future nominees and future presidents.

Norman Ornstein is a resident scholar at the American Enterprise Institute.