Norm Theory and the Future of the Federal Appointments Process
Gebhardt, Michael J., Duke Law Journal
The way George W. Bush became the forty-third President of the United States was extraordinary in ways that we are still assessing.(1) In addition to Bush's contested presidential victory, the election produced an unprecedented 50-50 split in the Senate, with Vice President Richard Cheney able to cast a tie-breaking vote. Because many Senate votes on presidential appointments are likely to be close,(2) George W. Bush's presidency provides a unique setting for testing the robustness of appointments norms: the behavioral regularities of presidents and senators regarding appointments that persist in the absence of formal rules and that deviations from which trigger sanctions.(3)
In this Essay, I examine national political leaders' prospects for taking advantage of existing appointments norms or inventing new ones.(4) Using examples from the presidencies of Bill Clinton and George W. Bush, I argue that national political leaders' compliance with and manipulation of norms can facilitate the fulfillment of personal or party agendas on federal appointments. While the constitutional structure and Senate rules governing appointments generally are resistant to formal alteration, the same is not true of the institutional norms governing appointments. The fact that some appointments norms are in flux raises the possibility that they are more amenable to change than the formal structure and rules of the appointments process, which change only under extraordinary circumstances.(5) Appreciating the nature of flux in appointments norms is crucial for determining how norms can be managed to achieve certain results in, and, possibly, to achieve reform of, the appointments process.
To appreciate the nature and significance of the flux in appointments norms, one needs initially to understand the range of appointments norms. While many appointments norms have been discussed elsewhere,(6) Section I clarifies the application of such norms to subcabinet appointments. Various factors combine to produce more Senate contests over subcabinet than cabinet nominations. These factors include the comparatively large numbers of subcabinet offices; the narrower jurisdiction of such offices, allowing their occupants to exercise direct responsibility over ideological battlefields such as civil rights; the greater vulnerability of subcabinet nominations to logrolling; propensities toward party-line voting; and Senate rules allowing subcabinet appointments to be thwarted more easily than cabinet ones.
Moreover, I examine two recent consequences of uncertainty about which norms govern. The first involves "norm ambiguity," or the potential for development of a new norm when there is conflict over the meaning of an existing norm.(7) An example of such conflict concerns recent uncertainty about whether sitting U.S. Attorneys should tender resignations at the outset of new presidential administrations.(8) The second consists of responses to the absence of clearly governing norms, which invites actors to protect or expand their authority. A recent illustration is the tendency of presidents interested in consolidating control over policymaking to increase the number and responsibility of staff members who are not subject to Senate confirmation.(9)
In Section II, I explore the relevance of norm theory to reform of the appointments process. First, complying with certain norms (such as senatorial courtesy(10) and the use of moderate rhetoric to create a framing effect that lowers expectations) can break logjams in judicial confirmations. Second, appreciating the significance of rhetoric and norms in confirmation contests is essential for evaluating whether some reforms of the confirmation process, such as limiting the questioning of judicial nominees, are feasible. Third, the success of political leaders as norm entrepreneurs depends less on their personal attributes(11) than on their manipulation of resources, including their political support, to withstand retaliation for attempted innovations and expansions of institutional prerogatives. …