Confirmed: The Nomination Process Is Broken

Even Senate Republicans want to help speed up the presidential appointment process.

Dawn Johnsen

Dawn Johnsen doesn’t want to complain. It’s been one year and two months since she withdrew her nomination to lead the Office of Legal Counsel at the Justice Department. She’d spent just about as long—actually, a few weeks more—in limbo, awaiting a vote that never came.

She’s moved on. She’s teaching law again at Indiana University. She doesn’t complain, but she’s fed up. It’s been a couple of days since MIT economics professor and Nobel laureate Peter Diamond withdrew his nomination for a seat on the Federal Reserve Board of Governors, and a couple of weeks since Goodwin Liu withdrew his nomination for a seat on the 9th Circuit Court of Appeals. It’s getting sort of ridiculous.

“I’m starting to feel like it would be valuable to have some kind of reform that led to an up-or-down vote in some reasonable period of time,” she says.

Starting to feel like? This is a lawyer who spent much of the Obama presidency being pilloried as an enemy of national security, based on briefs, blogs, and articles for magazines like Slate. She blew a substantial amount of money on a rented house in suburban Washington and travel into the city whenever a senator beckoned her. Her career was put on hold; she was strongly urged not to talk to the press, and she didn’t, even though she was reading the commentary about her and had some thoughts about it. She still wants to be evenhanded about this.

“I’m not going to talk about any individual meetings with senators,” she says, “but the impression that I got was it wasn’t about me, that it wasn’t personal. It was political. And there were some senators who were very open about that. It wasn’t a difference in substantive views. The things I was attacked for saying about torture, for example—Lindsey Graham and John McCain have talked about that the same way.” (Neither publicly supported her nomination.) “You definitely need to look at how all the terrorism issues and nominees who dealt with terrorism issues were treated. The attempt was to describe President Obama’s approach as not sufficiently tough on terrorism, and make that a political issue.”

Confirmations are political. This is not news. The news is that they’ve never moved slower. Diamond’s withdrawal, on the op-ed page of the New York Times, was part of a flurry of news that made this obvious. One week earlier, House Republicans had prevented the Senate from going into recess, meaning that the president couldn’t temporarily appoint stalled nominees. And at the same time, Senate Republicans were talking openly about their distinct lack of interest in allowing cloture for members of the new Independent Payment Advisory Board, the new efficiency-hunting commission created by the Affordable Care Act.

How big is the problem? According to a Senate study, there are 422 key policy positions that require advise and consent—deputy secretaries of the Treasury, Homeland Security officials, offspring of the never-ending expansion of government. The same study finds that the time between nomination and confirmation votes has nearly doubled since the Reagan era, when the sclerosis really started. It took Reagan 114 days for nominees to get confirmed; it takes Obama closer to 200 days. By the White House’s own count, more than 200 nominees are in limbo.

Some of them are ambassadors being used as chits; more and more of them are for key jobs that Republicans don’t want to fill, or for candidates who’ve earned the nebulous, unshakeable status of “controversial.” James Cole, a nominee for deputy attorney general, was filibustered because he’d written (truthfully) that the terrorists behind the first World Trade Center bombing were “successfully tried and convicted under our criminal justice system”—he might oppose military tribunals. John Bryson, who’s up to become the next commerce secretary—the vermiform appendix of Cabinet jobs—is already being threatened with a filibuster or a hold because he co-founded an environmental group and thinks international environmental laws aren’t so bad.

This happens because the game is so easy. Grinding down a nomination only backfires if the administration has a brilliant strategy for making the nominee famous. That’s hard to do. In the 14 months that Diamond floated in the phantom zone, his stalled nomination was discussed a few times on cable business channels but never on network news and only twice on cable news—a short segment on an episode of The Rachel Maddow Show and an interview with Fareed Zakaria.

It’s tough to make people care about this, although for a while, Republicans were good at it. During the Bush years, a loose alliance of Republican staffers and conservative groups made sure that the judicial nominees held up by Democrats—Miguel Estrada, Janice Rogers Brown, Priscilla Owen, to name a few—became famous in TV ads and sob stories. Manny Miranda, a former Senate GOP staffer who worked on this, lost his job over this, and is now happily doing other things, says that Estrada’s nomination to the court was the focus of more op-eds and editorials than any other nominee for a job at that level. “When I was on conference calls back then,” says Miranda, “I’d be clear: The only way to communicate this is to personalize it. Miguel Estrada had a story to tell. You need to tell a story.”

The problem is so bad that it might actually get solved. (This isn’t something you can say about most issues up for debate in the Senate.) Since March, a group of senators led by Joe Lieberman, Chuck Schumer, Susan Collins, and Lamar Alexander have been gathering support for legislation that would cut by one-third the number of jobs that need Senate confirmation. It wouldn’t directly affect the affairs of an OLC nominee, or a Fed nominee, but nothing that clears up the schedule could hurt them. (In our interview, Johnsen said the marathon, plot-twisting health care debate continually delayed the date Democrats were thinking about spending some capital and voting on her.) There are very few bills that have the support of both parties’ leadership. This is one of them.

“There are so many confirmable jobs that no administration can hope to people all of the positions in any reasonable period of time,” says Sen. Jon Kyl, the Republican whip. “And we’ve got too many lower-level people subject to confirmation for what I would call the proper function of government.”

Some of the veterans of the confirmation wars want to do more. Miranda’s idea is so bold that it’s hard to imagine a Democrat floating it.

“You can draw the line,” says Miranda, “and people below a certain line—assistant secretary, people below that—are deemed approved and subject to confirmation. They exercise authority until they’re confirmed. That would solve this problem you have now, where the acting career person who takes the job while the nominee’s frozen is cautious, hesitant to make decisions. I think the president, as a policy matter, deserves to get the names in right away, and get who he wants, instead of getting bureaucrats.”

Miranda is adamant about this. “People have no idea about how this affects the government at lower levels. The culture of delay is almost as crippling as the corruption we fight across the world. Our corruption is delay. No one’s willing to make decisions. That hurts us.”