The Senate and Executive Branch Appointments
Loomis, Burdett, Brookings Review
An Obstacle Course on Capitol Hill?
"When you draw a line here and say, `no further,' then you've basically stopped the work of the Senate It isn't a threat. It's a reality.
Senator Larry Craig, Republican Policy Committee Chair, June 2000
Bolstered by analyses from both journalists and academics, the conventional wisdom now holds that the Senate has become increasingly hostile to presidential appointees. Would-be judges, justices, ambassadors, commissioners, and executive branch officials are "borked" by vicious special interests and their Capitol Hill co-conspirators. Appointees are "held hostage" by senators who seek substantive trade-offs or the confirmation of their own favored candidates for judicial or regulatory posts. Senators place so-called "holds" on nominations, thus delaying matters interminably. All in all, the Senate's performance, at least as commonly portrayed, does little to enhance the appointment-confirmation process. Quite the contrary. The Senate, to recall Robert Bendiner's description of more than 30 years ago, seems a major culprit in the lengthy and often distasteful politics of confirmation--a veritable "obstacle course on Capitol Hill."
This characterization fits with our broader understanding of the Senate of the past 20 years. As detailed by political scientist Barbara Sinclair and her fellow congressional scholars, the Senate has become both highly individualized and extremely partisan. At first blush, such a pairing seems unlikely--would not senators in a highly partisan legislature subordinate their individual desires for the good of the entire partisan caucus? But the Senate, once a bastion of collegiality, has become less civil, less cordial--sometimes almost rivaling the raucous House of the 1990s in its testiness. The lengthy, increasingly bitter partisan stand-off over the final year of the Clinton administration has given further credence to the perception that the Senate has become deeply hostile to appointments from a Democratic executive.
Still, headlines, assumptions, and conventional wisdom can be wrong, to a greater or lesser extent. We might do well to examine the data on confirmations. Do Senate confirmations take longer than they used to, especially in the modern era? Are more nominations withdrawn or returned to the executive?
Second, we might well ask how Senate processes might be altered in a partisan, individualistic era, especially when the upper chamber, unlike the rule-dominated House, usually operates through the mechanism of unanimous consent--that is, a single senator's objection can delay, if not stop, the normal legislative process. Even if we find that the conventional wisdom is accurate and that presidential appointments often run into a congressional roadblock, there may be little that can be done within the legislative branch. Indeed, Christopher Deering's assessment of Senate confirmation politics, circa 1986, bears repeating: "The relationship between the executive and legislative branches...remains essentially political .... The Senate's role in the review of executive personnel is but one example of that relationship. The Senate's role in the confirmation process was designed not to eliminate politics but to make possible the use of politics as a safeguard...a protection against tyranny." Circa the year 2000, one might well argue that more is going on than "protection against tyranny," but exactly what remains open to question.
The following discussion focuses on 329 top policymaking, full-time positions in the 14 executive departments that require presidential appointment and the approval of the Senate. Ambassadors, regulatory commission slots, military commissions, and federal attorneys are excluded.
Executive Branch Appointments and the Senate, 1981-99
To understand the magnitude of any "problem" with Senate confirmations of executive branch appointments, we need to know three things. …