Reflexive Opposition to Nominations Must Stop

Posted July 13, 2010 at 3:52pm

This column is about appointments, but I want to start with a reading recommendation, a new essay called “The Rising Threat of Deflation,” written by my American Enterprise Institute colleague, free-market economist John Makin. Every Member of Congress should read it, starting with Senate Republicans and Sen. Ben Nelson (D-Neb.).

[IMGCAP(1)]Makin makes a clear, compelling and disturbing case for why we face a serious threat of deflation, which could leave the American economy in intensive care for years to come. Dealing with that threat by ameliorating it ought to be an urgent priority — and that means serious stimulus now.

The co-chairmen of the fiscal commission, Erskine Bowles and Alan Simpson, warned over the weekend of the “fiscal cancer” represented by our deficits. They are right. There is a cancer, and it requires the fiscal equivalent of chemotherapy, which will be debilitating and painful. But no responsible doctor would dispense chemotherapy to a cancer patient already in intensive care with H1N1 until the patient was healthy enough to handle the side effects — or the harsh cancer treatment could lead to something much worse.

The Senate’s refusal to drop or overcome a filibuster to extend unemployment benefits and give aid to states that continue to provide a massive fiscal drag on a sick economy — to demand that they be paid for now, which is just foolish given the weakness of the economy and the danger of deflation — is simply shortsighted and reckless. I know how tempting it is to keep denying the Obama administration a victory, but there are greater stakes here.

The Senate’s agenda in coming days also includes the looming vote on Elena Kagan’s nomination to the Supreme Court. I have been struck by the reflexive partisan opposition to Kagan — who by any objective standard is extraordinarily well-qualified by temperament, intelligence and experience for the court.

In recent decades, it has become a too frequent occurrence to see knee-jerk partisan opposition to top level nominees. In some ways, I find it baffling. What if Republicans succeeded in this case in derailing Kagan? Would they end up with a second nominee who would be better from their perspective? No way. All they would gain is a symbolic defeat for the president.

When Democrats ganged up on Miguel Estrada’s nomination by George W. Bush to be an appeals court judge — a man also extraordinarily well-qualified by temperament, intelligence and experience for a higher court — it was stupid, wrongheaded and counterproductive.

They defeated Estrada and thereby derailed any option for him ultimately to be nominated to the Supreme Court. So they ended up instead with John Roberts and Samuel Alito. Was that better? The answer should be obvious: no. But partisan victories that are setbacks or embarrassments to presidents too often become reflexive goals these days.

The partisan nature of the confirmation process has even worse side effects when it comes to executive nominees — in this case going beyond defeating some to simply preventing them from getting into their offices for as long as possible. Way too many nominations are hung up by pernicious anonymous holds (the perniciousness is not just in the anonymity but in the holds themselves). Others get subjected to the threat of filibuster, raising the bar for many executive posts from 50 to 60.

The old norm that a president is entitled to his choices for executive branch posts unless there is some huge and significant problem has been completely shattered, to the grave detriment of basic governance.

Consider the case of Donald Berwick, a superbly qualified nominee to head the Centers for Medicare and Medicaid Services whom President Barack Obama just put in place via the short circuit of a recess appointment.

Pat Roberts is one of the funniest Members of the Senate, but one of his funniest lines was unintentional; in decrying the recess appointment, the Kansas Republican said, “This recess appointment proves the Obama administration did not have the support of a majority of Democrats and Republicans in the Senate.” Let me suggest to Roberts a deal, which I am confident the Obama administration would take in a nanosecond: Pledge that Republicans will allow an up-or-down vote on Berwick without filibusters or other procedural delays, in return for having a full hearing on his nomination.

It was the combination of extravagant rhetorical charges against Berwick, the threat of delay and the clear sign that delay and filibuster were in the cards that precipitated the recess appointment. But in this case, the blame for the use of this extraordinary and unfortunate practice can be spread widely. The Berwick nomination was sent to the Senate three months ago — and has not received a hearing in the Finance Committee.

The CMS is a critical post, with its importance magnified even more with the passage of health care reform and its role as the key implementer. There is simply no excuse for a three-month delay in processing this nomination. The Finance Committee is notorious for its overwrought and overdone scrubbing process for nominees, which put our international economic situation in jeopardy over the ridiculous delay in the confirmation of Lael Brainard to be undersecretary of the Treasury for international affairs. Berwick should have been put on a fast track instead of the train to nowhere.

But that takes us to the Obama administration, which should have picked a nominee for the CMS 18 months ago and not had the ridiculous, unconscionable and self-defeating act of waiting until health care reform passed before formally nominating the key person to implement it. The Senate’s confirmation process has become way too partisan and tortuous, tearing at the fabric of governance by keeping key positions unfilled.

But this White House has contributed to the problem through a series of self-inflicted wounds. Hundreds of important positions, Senate-confirmable and otherwise, remain stuck in limbo in agencies or the White House. Many are mired in the Senate, but many more are mired in the executive branch before even getting the opportunity to be mired in the Senate.

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