Is Senate confirmation of Presidential nominees worth savaged reputations and political grandstanding? Unfortunately, yes, argues a Yale legal scholar
A few years ago a friend asked me over lunch whether I knew of any "dirt"—his word—on a person who had recently been nominated to a post requiring Senate confirmation. The "groups," he said, had decided to oppose the appointment and were trolling for information. In other words, a smear campaign was coming.
This tale comes to mind in the wake of economist Peter Diamond's dramatic and angry withdrawal on June 6 of his candidacy for a post on the Federal Reserve's Board of Governors. Diamond, who last year was awarded the Nobel Prize in Economic Sciences, was opposed by Republicans led by Senator Richard Shelby of Alabama. While Shelby claimed this was because Diamond had too little experience in monetary policy and he couldn't back "decisions made by board members who are learning on the job," the real aim was to turn Diamond's confirmation process into a referendum on President Barack Obama's economic policies.
Then there's the looming battle over the nomination of John Bryson to serve as Commerce Secretary. In this case, it's not Bryson's expertise that's under fire—he ran California's largest utility and is on the boards of Boeing (BA) and Walt Disney (DIS)—but his role as a co-founder of the Natural Resources Defense Council. This has stirred opposition, even among some Democrats. Senate Republicans have promised not to allow a vote on the nomination until Obama submits for congressional approval the pending free-trade agreements with Colombia, Panama, and South Korea.
None of this is particularly fair to Diamond or Bryson. Still, the clamor of outrage among their supporters is, to say the least, ahistoric. What's happening today is no different from what has happened to nominees over the past half century or so, when politicians and interest groups discovered that confirmation fights are excellent opportunities to fight for political advantage.
We are so accustomed to vicious and distorted attacks on nominees for judicial office that we easily forget that others, too, can find themselves caught up in nasty tussles. One need only recall the treatment of Lani Guinier, President Bill Clinton's initial nominee to head the Justice Dept.'s Civil Rights Div., whose opponents distorted her scholarship beyond recognition. Or Robert Gates, the outgoing Defense Secretary. He was nominated by President Ronald Reagan to run the CIA in 1987, but the nomination was withdrawn when Democrats protested his alleged involvement in the Iran-Contra scandal. (The accusation was that Gates had known more about the affair than he told investigators; the independent counsel wound up not pursuing the matter, and Gates finally got the CIA job in the George H.W. Bush Administration.) Speaking of the CIA, one might also recall Theodore Sorensen, who was nominated in 1977 to head the agency but had his nomination withdrawn following accusations that he was a pacifist.
Although only a handful of executive branch nominations are actually defeated, the number generating controversy has risen steadily. Democrats think only Republicans get obstreperous, and Republicans think the same about Democrats. The truth is, everybody does—and with increasing frequency; Diamond was the 20th nomination to Obama's executive branch to have been withdrawn.
Political scientists suggest that senators use high-profile nomination battles as opportunities to communicate their own views to their constituents and to the interest groups so necessary to their election. Now that the Internet has made organizing easier and coupled elected officials more tightly to the interest groups that monitor their every word, the number of nominations that generate controversy is bound to increase.
One reason the attacks on nominees are so strident is to overcome the presumption that the President is entitled to "his own team." But the presumption is a myth. The Founders envisioned a heavy Senate role in appointments. Alexander Hamilton suggested in the Federalist Papers that the requirement of confirmation would, among other things, keep the President from filling the executive branch with those who were "in some way or other personally allied to him." Indeed, a reason there were scarcely any squabbles over Cabinet members for the first 90 years of the republic is that Presidents consulted closely with leading senators in deciding whom to appoint.
The tradition began to decline as governing grew more complex and was thrown over entirely during the Presidency of Rutherford B. Hayes. Part of the problem was that executive appointments had become part of the spoils system for powerful senators. But, as we do so often, we tossed out the baby with the bath water. Determined to end the corruption, Hayes forced his appointments down the Senate's collective throat. Thus Hayes, known to history for the infamous bargain that bought the Presidency at the cost of ending Reconstruction, also largely subdued the Senate as a serious partner in the appointments process.
Since that time, Presidents have worked hard to keep their executive appointments away from serious Senate scrutiny. One way to do this is to make recess appointments, intended by the Founders to tide the nation over when the Senate happens not to be in session. Nowadays, Presidents use this dodge to get people into slots the Senate might not let them have. President Obama has made nearly 30 recess appointments in his first two years in office, not an unusually high number these days—unless your baseline is the way the constitutional system of checks and balances is supposed to work. Given the ever-greater likelihood that executive branch and agency nominees will run into trouble, it's easy to see why Presidents yield to the temptation to thwart the constitutional system of checks and balances: They know Congress will never punish them for it.
The confirmation process may not be fixable. In the nation's first days, the Senate had to approve fewer than a dozen of the President's aides. Today, more than 500 executive branch posts require Senate confirmation. With politicians, interest groups, journalists, and bloggers engaged in the constant quest for advantage, a few nominees will always become objects of controversy. There are too many contested issues, too many flash points, and—most important—too many constituencies demanding constant signals that their particular concerns are uppermost in the minds of their elected officials.
Congress is considering a significant reduction in the number of positions requiring confirmation—an increased centralization of power in the executive that would have appalled the Founders and should appall us, too. A possibility rarely mentioned is to shrink by a significant amount the size and scope of the federal government. A smaller executive branch would mean less need for Senate confirmation. Indeed, the steady rise of confirmation fights in the years after World War II predictably tracks the steady rise of federal agencies. Yet significant shrinkage seems politically unlikely—every agency lives symbiotically with several well-organized interest groups.
Yes, it would be lovely if grasping interest groups would stop digging for dirt and hungry politicians would stop grandstanding, but democracy is rarely lovely. Democracy is clamorous and disputatious. The more distant people feel from those who govern them, the louder their clamor to be heard. The clamor does not necessarily lead to right answers or wise decisions. But democracy is a process, not a result.
Those loud voices—those out-of-context sound bites, those sudden savagings of the reputations of the innocently qualified—have always been part of our democracy. It's ugly and painful and often unfair. It's also the American way; and with a federal government so vast, interest groups so diverse, and the battle for press coverage so intense, it is likely to get worse.