In the light of yesterday’s seeming resolution over the confirmation of Executive Branch nominees, Brad Plumer wonders if we really need to have so many positions subject to the necessity of Senate confirmation:
Let’s start with the raw numbers: There are somewhere around 1,200 to 1,400 positions in the executive branch that require Senate confirmation, according toan estimate by the Congressional Research Service. That means several hundred nominees have to get scrutinized by the Senate each year.
This list includes all the obvious, major positions — like the head of the Environmental Protection Agency or the Secretary of Defense. It also includes ambassadors and justices to the Supreme Court. Virtually everyone agrees that it’s reasonable to have Senate oversight for these big, important jobs. That’s what the Constitution envisioned.
But the full list also includes plenty of assistants and deputies and administrators and positions hardly anyone has ever heard of. Does the Senate really need to confirm all 15 members of the National Council on Disability? Or the Intellectual Property Enforcement Coordinator at the Office of Management and Budget? Does this make sense at a time when the Senate is taking longer and longer to confirm various nominees?
That’s a trickier question. Whenever Congress creates new executive-branch agencies and offices, it makes a determination about whether the positions within them require Senate confirmation or not. That’s all well within Congress’s rights under the Advice and Consent clause of the Constitution.
The reason that Congress has defaulted to making the positions of new agencies that it may create, of course, is that it allows that body to retain oversight control over the body itself from the very beginning by requiring that the Senate have a voice in determining who gets to staff those agencies. Ceding authority for appointment of new members to the President essentially means that the agency becomes a creature of the President. Take, for example, the Consumer Financial Protection Bureau, which yesterday’s agreement finally put at its officially confirmed head Richard Cordray, whom President Obama had appointed some two years ago only to see the nomination tied up in what was, in the end, Republican opposition to the very existence of the agency itself. Let’s say that Congress had decided from the start that the head of this Commission could be appointed by the President himself. This would essentially mean that a Republican President could appoint someone who would let the agency lie dormant for the entirety of his term and there’s very little that Congress could do about it. Now, one can make perfectly valid policy arguments against the CFPB and the broad powers it has been granted, but allowing a President us a unilateral appointment power to thwart Congressional intent would seem to be entirely improper. Therefore, Congress requires positions such as this to be confirmed by the Senate along with other Executive Branch, or quasi-Executive Branch, agency positions. Over time, the number of such positions has added up significantly. Leaving aside the institution issues currently gripping the Senate, the prospect of vetting and voting upon more than 1,000 Presidential appointees is no small matter requiring a significant expenditure of the Senate’s time.
As Plumer notes, there have been some solutions suggested to this perceived problem:
One, the Senate could speed up the pace of confirmations. This is exactly what Harry Reid and Mitch McConnell have been fighting about for the last few days. Reid claimed Republicans were bogging down nominees through filibusters in order to cripple agencies like the National Labor Relations Board. McConnell retorted that the Senate was confirming most nominees anyway and the system was ultimately working. That fight appears to be resolved for now.
Another possible option, however, would be to shrink the number of executive-branch nominees that need Senate confirmation in the first place. If Senate committees didn’t need to spend so much time on low-level positions, the logic goes, they could focus on the important jobs and confirm these nominees more quickly.
As it turns out, the Senate actually took a first crack at this question two years ago with the Presidential Appointment Efficiency and Streamlining Act of 2011. That resolution ultimately reduced the total number of executive-branch positions needing approval by 163. It also identified another 272 positions that could now speed through the Senate fairly quickly, barring unusual circumstances.
Under the new arrangement, the Senate would continue to scrutinize the big jobs, like Secretary of Defense or all the top-level jobs at the Environmental Protection Agency. But lawmakers decided that they could probably do without confirming a slew of lower-level positions. Like, say, the Administrator of the St. Lawrence Seaway Development Corporation. Or the Assistant Administrator for Management at USAID. (You can see a longer list of positions that no longer need Senate approval on page 19 of this report.)
Some Senators suggested knocking more positions of the list, such as some of the more obscure of the Assistant and Deputy Secretary positions at the Cabinet Departments to start with but they couldn’t get a majority of the Senate to go along with them. So, this means that there are still more than a thousand positions that require Senate confirmation, and plenty of opportunities for issues like the near “nuclear option” meltdown to occur in the future. Logically, of course, there ought to be a way to figure this out. For lower level appointments that don’t necessarily involve policy making, perhaps there are many that can be pared from the “requires Senate confirmation” list. Barring that, it would seem to make sense that there ought to be an agreement that these types of nominations can be fast-tracked in some way while the real attention is paid to the more important positions. The same could be said to many Ambassadorial appointments. Does the Senate really need to spend as much time scrutinizing the qualifications of the Ambassador to the Federated States of Micronesia, to just pick as an example, as it does to an Ambassadorial appointment to Russia, China, or any number of America’s most important allies? Of course not, and one gets the impression that the Senate already handles such appointments in this manner. They certainly do in the case of Judicial nominations, where District Court appointments are generally not given the same scrutiny as appointments to the Circuit Courts of Appeal and the persons nominated generally come from a list generated by the Senators of the state in which the vacancy is located that is submitted to the Executive Branch. This isn’t an argument for the Senate abandoning its obligations under the “advise and consent” clause, but it seems rather obvious that the list of positions subject to that clause is too long.
There is another solution, of course. Congress could eliminate many of the positions for which it is required to confirm nominees. Some could be eliminated outright, others could probably be folded into one of the Cabinet Departments. Of course, that’s an idea that makes far too much sense for the denizens of Capitol Hill to figure out.
