The United States Constitution, which turned 225 years old last summer, is a remarkable document: the provisions of a text written in the eighteenth century continue to guide twenty-first-century governance. We will be reminded of the implications of that in the coming weeks, as President Barack Obama fills senior positions in his second-term administration. In many cases, the process will not be pretty.
Article II of the Constitution stipulates presidential powers that require the “advice and consent of the Senate,” including the nomination of senior officials. Probably nobody, 225 years ago, had any idea that the number of officials deemed to require Senate confirmation would eventually exceed 1,400, or that Senate confirmation would involve a vetting process that often takes years to complete…Indeed, many people believe that the Senate confirmation process is broken…
Because of the sheer volume of nominations, most have traditionally sailed through the Senate with so-called unanimous consent, a process by which nominations are placed on the day’s calendar and the calendar is approved in a single voice vote. But that expedited process is becoming rarer nowadays.
A senator may place a “hold” on a nomination for any reason – including personal animus toward the nominee, or, more often, to gain something in exchange. And, increasingly, nominations have become a kind of public circus, attracting all kinds of players to the ring: non-governmental organizations, pundits, local politicians, and virtually anyone with an opinion and a way to express it.
These types of spectacles used to be reserved for the nomination of Supreme Court justices – a lifetime appointment to a nine-member body that can overturn laws passed by Congress and signed by the president. But those full-throttle battles have now spilled over to other nominations. As a result, an individual’s agreement to serve the president for two or three years has become a life-altering – and mind-numbing – experience.
Today, any nominee to a position requiring Senate confirmation can expect to spend many hours listing past places of residence, attaching tax returns, detailing family members’ campaign contributions, and answering questions about the employment of domestic help or gardening services and whether such employees were legal, tax-paying US residents. The vetting process will even go back to one’s teenage years – all to ensure that anything that the Senate’s own investigators can find is known before the nomination is formally submitted.
During my career, the Senate confirmed me five times. Each time, the vetting essentially started from scratch. In addition to the countless forms, lengthy questionnaires, and background investigations, there was an interview with a paralegal whose job was to ferret out any information that might conceivably bear on the nomination.
These interviews included such cheerfully delivered questions as, “Have you ever been arrested for growing marijuana?” Or, more directly: “Do you take drugs?” Or, probing further into past activities or behavior, “Have you ever been arrested for public drunkenness…?”
Sometimes, opponents of a nominee merely want to make a point, or to cultivate donors (an activity that can seep into any issue in Washington). When the point is made – or the fundraising goals are achieved – the nominee gets the happy phone call: “It’s done. The nomination will go through this afternoon. We’ll call you when the vote takes place. Congratulations!” At that point, the nominee hangs up and says: “What was I thinking?”
And, sometimes, filling a post can go on for years with no prospect of resolution. Since conservatives in Congress decided the position of director of the Bureau Alcohol, Tax, Firearms and Explosives needed Senate confirmation – six years ago – no one has been approved. Not because of qualifications or standards; but, because NRA flunkies don’t wish the department to function at all.
RTFA for more of Christopher Hill’s experiences and analysis of just how backwards congressional processes can become. I know it won’t surprise you. I wish it might shame this clown show into activity beyond their perpetual posturing for re-election.