Diamond, Bryson and the Ever-Nastier Senate: Stephen L. Carter

June 9 (Bloomberg) -- 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 after economist Peter Diamond’s dramatic and angry withdrawal of his candidacy for a post on the Board of Governors of the Federal Reserve, and the looming battle over the nomination of John Bryson to serve as secretary of commerce.

Diamond, who last year was awarded the Nobel Memorial Prize in Economic Science, was opposed by Republicans led by Senator Richard Shelby of Alabama. Although Shelby claimed this was because Diamond had too little experience and that he couldn’t back “monetary policy decisions made by board members who are learning on the job,” the real aim was to turn his confirmation process into a referendum on President Barack Obama’s economic policies.

In Bryson’s case, it isn’t his expertise that is under fire -- he ran a giant California utility, Edison International -- but his role as a co-founder of the Natural Resources Defense Council, which 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 Panama, Colombia and South Korea.

Unfair and Traditional

None of this is particularly fair to Diamond or Bryson. Still, the clamor of outrage among their supporters is, to say the least, ahistorical. What is happening today is no different from what has happened to nominees over the past half century or so. Or what has happened, at least, when politicians and interest groups have spotted opportunities to use a confirmation fight for political advantage.

We are so accustomed to vicious and distorted attacks on nominees for judicial office that we might easily forget that others, too, can find themselves caught up in unexpected and nasty tussles. One need only recall the treatment of Lani Guinier, President Bill Clinton’s initial nominee to lead the Civil Rights Division of the Justice Department, whose opponents distorted her scholarship beyond recognition.

The Gates Case

Or consider Robert Gates, the outgoing secretary of defense. He was selected by President Ronald Reagan to run the Central Intelligence Agency in 1987, but the nomination was withdrawn when Democrats protested his alleged involvement in the Iran-Contra scandal. (The actual accusation was that Gates had known more about the affair than he told investigators, but the independent counsel wound up not pursuing the matter, and Gates finally got the job in the administration of George H.W. Bush).

And, speaking of the CIA, one might also recall Theodore Sorensen, who was nominated in 1977 to head the agency but withdrew his nomination after accusations that he was a pacifist. Indeed, although only a handful of executive branch nominations are actually defeated, the number generating controversy rises steadily.

Democrats think only Republicans behave this way, and Republicans think the same about Democrats. The truth is, everybody does it, and with increasing frequency. Diamond was the 20th of Obama’s executive branch nominations to have been withdrawn.

Opportunities to Communicate

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 election. Now that the Internet has made organizing easier and has 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 that presumption is a myth. The Founders envisioned a heavy Senate role in appointments. Alexander Hamilton suggested in “The Federalist” 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.”

Complexity Added Animosity

Indeed, one reason that there were scarcely any squabbles over cabinet members for the first 90 years of the republic is that the 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 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 that 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. Obama has made almost 30 recess appointments in his first two years in office, not an unusually high number -- unless your baseline is the way the constitutional system of checks and balances is supposed to work.

Yielding to Temptation

Given the ever-greater likelihood that executive branch and agency nominees will run into trouble, it is easy to see why presidents yield to the temptation to thwart the system: They know Congress will never punish them for it.

The confirmation process may not be fixable. In the nation’s early 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, some nominees will always become objects of controversy. There are too many contested issues, too many flashpoints, and -- most important -- too many constituencies demanding constant signals that their particular concerns are uppermost in the minds of their elected officials.

Many reforms have been suggested. 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 Shrinking Solution

A rarely mentioned possibility 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 doesn’t necessarily lead to right answers or wise decisions; but democracy is mostly process, not result.

Those loud voices -- those out-of-context sound bites, those sudden savagings of the reputations of the innocent -- have always been part of our democracy. It is ugly and painful and often unfair to the innocent. It is also the American way; and with a federal government so vast, and interest groups so diverse, and the battle for news coverage so intense, it is likely to get worse.

(Stephen L. Carter, a professor of law at Yale, is a Bloomberg View columnist. The opinions expressed are his own.)

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