The Ottumwa Courier

Community News Network

July 19, 2013

5 myths about presidential appointments

Our Constitution says presidents must execute laws passed by Congress. But what if the Senate won't approve the people supposed to do the executing? A stalemate over this quandary ended this past week when Senate Democrats and Republicans struck a deal to confirm some of President Barack Obama's stalled nominees to agencies such as the Consumer Financial Protection Bureau. But before we move on from this crisis - one that will probably happen again - let's tackle some misunderstandings about presidential appointments.

              

1. It's the Senate's fault that important agency positions and federal judgeships are vacant.

              

It is certainly disconcerting that the GOP, the Senate's minority party, blocks up-or-down votes on presidential nominees, a tactic that until recent administrations was reserved for exceptional cases. Presidents, however, bear considerable responsibility for vacancies because they take so long to make nominations. At least since George H.W. Bush was commander in chief, presidents have taken more than twice as long at the start of their administrations to come up with executive agency nominations as it has taken the Senate to confirm them.

              

The difference between nomination and confirmation times is usually not as stark for judgeships. For the Supreme Court in recent decades, confirmation tends to take longer than nomination, but for seats on many lower courts, the president moves slower than the Senate. The Congressional Research Service found that as of Jan. 19, Obama had nominated candidates for just 31 of 81 open federal district and circuit court spots. Senators are part of that problem: The White House customarily does not nominate judges without the approval of a home state's senators, and a majority of the 50 positions without a nominee were in states with at least one Republican senator. But Obama isn't blameless.

              

2. Cutting the number of Senate-confirmed positions is the best long-term solution.

              

Good-government commissions such as the Twentieth Century Fund Task Force on the Presidential Appointment Process and the 9/11 Commission lament the number of jobs requiring Senate confirmation and recommend reducing it. Under the appointments clause in Article II of the Constitution, however, only Congress can eliminate the confirmation requirement for some important agency positions - and Congress is generally unwilling to give up influence.

              

The bipartisan Presidential Appointment Efficiency and Streamlining Act of 2011 managed to eliminate Senate confirmation for 163 jobs, leaving the president to select those individuals on his own. Few of those positions, however, were controversial. They included, for example, 24 members of the National Science Board, 20 members of the National Museum and Library Services Board, 15 members of the National Board of Education Sciences and 10 members of the National Institute for Literacy Advisory Board.

              

A better way to reduce vacancy rates would be to get appointees to stay in their jobs longer. Rapid turnover is a long-standing problem: A staff member for President Dwight Eisenhower reportedly quipped that appointees stay a "social season and a half and then leave." He may have been exaggerating, but turnover is still very high. In the past five completed administrations, Cabinet secretaries' tenures averaged 3.2 years, but their deputies left about every two years. Administrations should push nominees to commit to a certain number of years in office and support them so they want to stay.

              

3. Agencies cannot operate without Senate-confirmed leaders in place.

              

Top agency positions are left vacant when nominations and confirmations lag, but their functions are not usually neglected. In many cases, an acting official is at the desk. The Federal Vacancies Reform Act of 1998 allows temporary officials to wield full authority in most agencies (but, critically, not in top jobs in independent regulatory commissions such as the National Labor Relations Board). The law limits how long these acting officials can serve, but many agencies operate by delegating responsibilities to other officials, even after these periods expire.

              

For example, June 10 was the final day acting Commissioner Daniel Werfel could head the Internal Revenue Service with that title. That day, Obama named him principal deputy commissioner and deputy commissioner for services and enforcement, which is now the top IRS position. Furthermore, once Obama submits a nomination for the commissioner's job, the law allows it to be filled by an acting officer, so Werfel's title may change again.

              

4. Judicial nominations are usually controversial.

              

It depends on the court. Confirmation rates tend to be lower for appellate court judges than for members of independent regulatory commissions and boards - the agency nominees battling the lowest confirmation odds - but higher for district court judges. According to the Congressional Research Service, the past five presidents ranged in their success on first-term nominees to appeals courts, from 67.3 percent to 86.8 percent. The rates are higher for district courts, from 76.9 percent to 95 percent. Obama fares next-to-last in each category.

              

The process also matters, and delays seem to be increasing. Before the Clinton administration, it was unusual for the Senate to conduct a roll-call vote on a lower-court nomination - a tactic that can delay confirmation. Meanwhile, Obama is the only modern president whose nominees for district and appeals courts have taken, on average, more than half a year to confirm.

              

5. Refusing to confirm presidential nominees is a fair way to rein in government.

              

Before the compromise reached this past week, Sen. Lindsey Graham, R-S.C., refused to confirm nominees to the NLRB after the agency sued Boeing over a new plant in his home state. The agency alleged that the company illegally moved work to South Carolina to retaliate for strikes by employees in Washington state. Graham and others hoped to cripple the agency - as did Democrats who used similar tactics in the final months of President George W. Bush's administration to delay a more conservative NLRB. (Boeing eventually settled with the agency, agreeing to create more unionized jobs in Seattle.)

              

In independent commissions not covered by the Vacancies Reform Act, such tactics can create great delay and uncertainty. But unless Congress repeals the laws governing those entities, their work remains necessary. For example, courts' caseloads are not reduced to account for judicial vacancies, and disputes between workers and management must still be resolved when the NLRB is hamstrung.

Graham conceded this past week that the confirmation process is not a proper way to change government obligations. He said that Richard Cordray - nominated to head the Consumer Financial Protection Bureau, created in 2011 under the Dodd-Frank Wall Street Reform and Consumer Protection Act - "was being filibustered because we don't like the law. That's not a reason to deny someone their appointment. We were wrong."

          

 

1
Text Only
Community News Network
  • To sleep well, you may need to adjust what you eat and when

    Sleep.  Oh, to sleep.  A good night's sleep is often a struggle for more than half of American adults.  And for occasional insomnia, there are good reasons to avoid using medications, whether over-the-counter or prescription.

    April 16, 2014

  • Doctors to rate cost effectiveness of expensive cancer drugs

    The world's largest organization of cancer doctors plans to rate the cost effectiveness of expensive oncology drugs, and will urge physicians to use the ratings to discuss the costs with their patients.

    April 16, 2014

  • Low blood-sugar levels make for grousing spouses

    Husbands and wives reported being most unhappy with their spouses when their blood-sugar levels were lowest, usually at night, according to research released this week in the Proceedings of the National Academy of Sciences. Missing a meal, dieting or just being hungry may be the reason, researchers said.

    April 16, 2014

  • Screen Shot 2014-04-16 at 12.51.22 PM.png VIDEO: Toddler climbs into vending machine

    A child is safe after climbing into and getting stuck inside a claw crane machine at a Lincoln, Neb., bowling alley Monday.

    April 16, 2014 1 Photo

  • portraitoflotte.jpg VIDEO: From infant to teen in four minutes

    Dutch filmmaker Frans Hofmeester’s time lapse video of his daughter, Lotte — created by filming her every week from her birth until she turned 14 — has become a viral sensation.

    April 16, 2014 1 Photo

  • Victimized by the 'marriage penalty'

    In a few short months, I'll pass the milestone that every little girl dreams of: the day she swears - before family and God, in sickness and in health, all in the name of love - that she's willing to pay a much higher tax rate.

    April 15, 2014

  • Allergies are the real midlife crisis

    One of the biggest mysteries is why the disease comes and goes, and then comes and goes again. People tend to experience intense allergies between the ages of 5 and 16, then get a couple of decades off before the symptoms return in the 30s, only to diminish around retirement age.

    April 15, 2014

  • treadmill-very-fast.jpg Tax deduction for a gym membership?

    April marks another tax season when millions of Americans will deduct expenses related to home ownership, children and education from their annual tax bill. These deductions exist because of their perceived value to society; they encourage behaviors that keep the wheels of the economy turning. So why shouldn't the tax code be revised to reward preventive health?

    April 15, 2014 1 Photo

  • bomb1 VIDEO: A year after marathon bombing, Boston remains strong

    The City of Boston came together Tuesday to honor those who were injured and lost their lives at the Boston Marathon on the one-year anniversary of the bombing. While the day was sure to be emotional, those affected by last year's race are showing they won't let the tragedy keep them down.

    April 15, 2014 1 Photo

  • Google acquires drone maker Titan Aerospace to spread Internet

    Google is adding drones to its fleets of robots and driverless cars.
    The Internet search company said it acquired Titan Aerospace, the maker of high-altitude, solar-powered satellites that provides customer access to data services around the world. Terms of the deal weren't disclosed.

    April 14, 2014

Obituaries
Record
Facebook
AP National