The floor of the United States Senate, the body responsible for confirming presidential appointments.
Last year, much of the nation tuned in to watch the contentious confirmation hearings for Justice Brett Kavanugh’s nomination to the Supreme Court. While Democratic senators questioned Kavanuagh on the sexual assault allegations levied against him by Dr. Christine Blasey Ford, Republicans condemned a process they deemed unfair. Sen. Lindsey Graham (R-S.C.) even called the hearing the “most unethical sham since I have been in politics.” On October 6, 2018, nearly three months after his nomination was announced, the memorable episode came to an end as the Senate voted to confirm Kavanaugh by a margin of 50-48, mostly along party lines.
Because of the unusually highly-publicized nature of this hearing, people were able to see how the Senate confirmation process works. As was demonstrated, nominees to the Supreme Court and the Cabinet deserve and receive heavy scrutiny before being allowed to assume some of the most powerful positions in the federal government. These high-profile positions garner much media attention and their occupants often become household names.
However, the scope of the Senate’s confirmation process extends far, far beyond Cabinet-level positions and the top federal judgeships. There are currently around 1,200 positions requiring Senate confirmation throughout the federal bureaucracy. Among these positions are the Cabinet members, ambassadors to foreign nations, and other high-ranking officials, for whom the need for Senate confirmation is uncontroversial.
Yet unbeknownst to many, these 1,200 positions also include several low-level assistants, deputies, and under-secretaries. Does the federal co-chair of the Appalachian Regional Commission really deserve the same level of scrutiny as the secretary of state? How about the assistant administrator for enforcement and compliance assurance at the Environmental Protection Agency? Do the nine trustees of the Morris K. Udall Scholarship and Excellence in National Environmental Policy Foundation really need to be approved first by the Senate? The answer to these questions is almost certainly “no,” and yet every time a president, and many of his appointees, leave office, the Senate is tasked with reviewing the nominees for all of these obscure and relatively insignificant jobs. To remedy this largely inefficient use of government time and resources, the Senate must streamline its confirmation process.
Vacancies in the Federal Bureaucracy
The mass exodus of bureaucratic officials when one administration ends also presents a challenge for the incoming president: filling hundreds of vacant positions. This task has proven to be more difficult for modern presidents due to the expansion of the federal bureaucracy in the 20th century. President Roosevelt’s New Deal policies established several new federal agencies, which produced more positions requiring Senate confirmation. President Johnson’s Great Society program also led to a similar increase.
Congress has already attempted to manage this growth with a bipartisan 2011 law that eliminated the Senate confirmation requirement for 163 positions in the executive branch. Clearly, however, this dent has been inadequate to address the ever-expanding bureaucracy.
The number of positions requiring Senate confirmation makes it difficult to efficiently fill all of them. President Trump, in particular, has been unable to cope with the overwhelming number of vacancies. As of October 2019, closing in on three years into his term, Trump has filled just 494 of the 733 “key” bureaucratic positions.
Important departments such as the Department of Justice and Department of Homeland Security are particularly struggling with vacancies, as just 48 percent of key positions in the DOJ have been filled, and a shockingly low 41 percent of DHS key positions are currently occupied. As a result, many bureaucratic agencies are struggling to perform their functions properly and efficiently.
Senate Delays
This problem of bureaucratic vacancies, however, is not limited to the Trump administration, nor is the Senate itself blameless in the confirmation delays. For the nominees of recent administrations, the amount of time spent in Senate committees has generally increased with each successive presidential administration since the Reagan Administration. The delays in the confirmation process handicap the president’s ability to fill the necessary positions and ultimately, to govern.
Increased polarization has also had a detrimental impact on the Senate confirmation process. For example, in 2013, former Senate Majority Leader Harry Reid (D-Nev.) invoked the “nuclear option” to bypass Republican filibusters that attempted to obstruct President Obama’s nominees. In 2017, Senate Majority Leader Mitch McConnell (R-Ky.) extended the rule to include Supreme Court nominees in order to push through the confirmation of Justice Neil Gorsuch.
Despite this long, sometimes contentious process, the end result is almost inevitably the same: the Senate, with few exceptions, confirms the nominee. In the history of the Senate, only nine cabinet nominees have been rejected out of several hundred nominations, with the last being President George H.W. Bush’s pick for defense secretary, former Senator John Tower (R-Texas), in 1989. Since World War II, the Senate has outright rejected just two nominees to the Cabinet, nevermind the lower-level positions that most senators do not pay much attention to. A handful of other nominations have also been withdrawn after the president learned he did not have enough votes in the Senate for confirmation. The president’s party is often reluctant to break ranks and vote against a nominee, and it is nearly impossible to muster the bipartisan support necessary to block a nomination. With the confirmation of the nominee very rarely in doubt, the question remains why 1,200 separate positions must go through this process.
Streamlining the Confirmation Process
The most straightforward solution to this inefficient process would be a more comprehensive version of the previous 2011 act that would eliminate the need for Senate confirmation for hundreds more positions in the federal bureaucracy. Cabinet-level positions and ambassadors would still require Senate confirmation, but the various assistant-secretary positions would not longer have this requirement.
On a more general level, a more civil political atmosphere with decreased partisanship would allow more bipartisan efforts to confirm a qualified nominee efficiently. The unheralded agencies that constitute our bureaucracy often perform essential tasks to the well-being of the nation, but their ability to do so is hampered by the overtly political and inefficient Senate confirmation process. By enacting a new streamlining law, these agencies can fill their vacancies quickly and continue their essential work.
Image Credit: Wikimedia Commons / U.S. Senate
