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Fix the confirmation process
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The Senate confirmation process is badly broken. 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 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 Sen. 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).
Ms. Landrieu has no questions about Mr. 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 BP 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. Yet for several long months, a crucial position in the president's Cabinet isn't filled for entirely unrelated reasons.
Ms. Landrieu finally lifts her hold on Nov. 18, when she becomes satisfied that the Obama administration has gotten rid of the moratorium. The senator explains, "I figured it would get their attention and I think it has."
When Ms. Landrieu (a Democrat, no less) blocked Mr. 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 Census Bureau. They prevented a floor vote for Donald Berwick, the immensely qualified nominee to lead the Centers for Medicare and Medicaid Services. (President Obama had to give Mr. 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 with 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 confirmation too nightmarish and battering to endure.
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 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 of senators, 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 within two months of the nomination date (with an exception for extraordinary cases involving genuinely serious issues).
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 easy. With respect to the confirmation process, it should be easy. We need a sensible, not-so-grand bargain, and we need it now.
First Published November 25, 2012 12:00 am
