Cass R. Sunstein / We must fix abuses of Senate confirmation process - pressofAtlanticCity.com: Commentary

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Cass R. Sunstein / We must fix abuses of Senate confirmation process

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Posted: Saturday, November 24, 2012 12:01 am

Cass R. Sunstein / We must fix abuses of Senate confirmation process

The Senate confirmation process is badly broken. In fact it is a disgrace. It needs to be fixed.

To appreciate the problem, let's begin with an example. It is September 2010. The respected and admired Jack Lew, nominated by President Barack Obama in July for the crucial position of director of the Office of Management and Budget, can't get a floor vote for confirmation. Louisiana Sen. Mary Landrieu, a Democrat, has placed a "hold" on his nomination - the equivalent of a filibuster, preventing a vote unless the Senate can muster a two-thirds majority.

Landrieu has no questions about Lew's character or qualifications. Her objection is that in April, after the oil spill in the Gulf of Mexico, the Obama administration imposed a temporary moratorium on offshore drilling. As everyone knows, the director of the Office of Management and Budget didn't make that decision, and the director would have no power to unmake it.

For several long months, a crucial position in the president's Cabinet isn't filled. Landrieu finally lifts her hold on Nov. 18. Landrieu explains, "I figured it would get their attention and I think it has."

Landrieu was playing within the rules. Republican senators have used the same rules to do far worse. They required a cloture vote to overcome their opposition to Robert Groves, a superb nominee who eventually served with distinction as director of the Census Bureau.

Republicans were able to prevent a floor vote for Donald Berwick, the immensely qualified nominee to lead the Centers for Medicare and Medicaid Services. (Obama had to give Berwick a recess appointment, and he was able to serve for only an abbreviated period.) They succeeded in blocking confirmation of Peter Diamond, the Nobel-winning economist, nominated to serve on the Federal Reserve Board.

The problem is the broad pattern, not individual cases. Republicans have subjected numerous Obama nominees to lengthy delays (disclosure: I was among them), and have prevented some of those appointees from being confirmed, without any reasonable basis for doing so. The structural problem seems to be getting worse, and it isn't the product of one party: Under Republican presidents, Democratic senators have sometimes been far too aggressive as well.

As a result, important offices can remain unfilled for long periods.

The confirmation process also has a damaging effect on the president's thinking. Rather than pick the best person for the job, he must ask, "In light of the ugliness and stupidity of the confirmation process, who is going to get through?"

Nor can we ignore the deterrent effect of the process on honorable and highly qualified people.

Both Republicans and Democrats have contended that because federal judges have life tenure and don't work for the president, it is legitimate for the Senate to give careful scrutiny to judicial nominees. Fair enough (though even for selection of judges, the line should be maintained between scrutiny and recalcitrance).

For executive branch officials, the assessment must be different. Those officials work for the president. Within broad limits, the president is entitled to select his own staff. So long as the president's choices meet basic standards of character and competence, the Senate should be reluctant to stall or stop them - much less to use the confirmation process to extort presidential favors or changes in policy.

The Senate should take three steps to fix this.

First, it should reduce the intensity of its scrutiny. Both parties should agree to adopt a strong presumption in favor of confirming executive branch nominees.

Second, the Senate should forbid a single senator, or a small group, from placing a hold on a nominee to an executive branch position.

Third, the Senate should ensure that every executive branch nominee is given a prompt up-or-down vote, probably within two months of the nomination date.

Starting from scratch, no sane person could propose the current confirmation process, which is a parody of the constitutional design. The problem, of course, is that when the president is a Republican, Democratic senators have no short-term incentive to fix it. The same is true for Republican senators when the president is a Democrat. With respect to the confirmation process, we need a sensible, not-so-grand bargain, and we need it now.

Cass R. Sunstein, the Felix Frankfurter professor of law at Harvard University, is the former administrator of the White House Office of Information and Regulatory Affairs, the co-author of "Nudge" and the author of "Simpler: The Future of Government," to be published in 2013. He wrote this for Bloomberg News.

Posted in on Saturday, November 24, 2012 12:01 am.

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