Nasty & Brutish Without Being Short: The State of the Presidential Appointment Process

The presidential appointment process is a national disgrace. It encourages bullies and emboldens demagogues, silences the voices of responsibility, and nourishes the lowest forms of partisan combat. It uses innocent citizens as pawns in politicians’ petty games and stains the reputations of good people. It routinely violates fundamental democratic principles, undermines the quality and consistency of public management, and breaches simple decency. Republicans and Democrats, legislators and chief executives, journalists and special interests all share responsibility for allowing one of the rare and genuine inventions of American political creativity to fall into a state of malignancy.

This special issue of the Brookings Review examines the contemporary appointment process from several perspectives. But all the articles share the same concern: at a time when the quality of political leadership in government matters more than ever, the principal procedures for ensuring that quality are less reliable than ever.

How did we get into this distressing condition? What is wrong with the contemporary appointment process? And what can we do about it?

The Empty Chairs

The evolution of the presidential appointment process over the years, described elsewhere in this issue, has been far from happy. A quick overview suggests the extent of its current shortcomings, beginning with its failure to meet its simplest responsibility: to fill the top offices of the government.

During the spring of 1997, 15 important countries had no U.S. ambassador. Ottawa had gone almost a year without one; Bonn almost ten months, Moscow almost five, Tokyo almost three, Paris almost two. Things were not much better at home. Nearly 250 of the U.S. government’s 726 most senior jobs—more than a third—were unfilled. The average appointee vacancy rate in the executive branch for all of 1997 was 25 percent. One of every eight federal judgeships was vacant. The Federal Election Commission was unable to get a quorum for much of 1998. The Food and Drug Administration had no commissioner for 18 months. The nation went for years without a surgeon general. This is now the norm. Vacancies in appointed positions are a prominent feature of the contemporary Washington landscape.

Moreover, the attempt to fill appointed positions moves at a snail’s pace—and it gets slower all the time. The data on this constitute one of the clearest and most consistent patterns in all of political analysis. The time required to fill presidentially appointed positions at the beginning of new administrations has grown steadily over the past 40 years, from 2.4 months in the Kennedy administration to 8.5 months in the Clinton administration. Of appointees who served between 1964 and 1984, only one of every twenty reported spending more than 6 months in the appointment process. Of those who served between 1984 and 1999, that share had grown to almost one in three. Every component of the process now takes longer than ever.

Frightening Away Talent

The ordeal of being appointed repels the successful and creative people needed to run a modern government. For many positions it now takes six months to a year just to find a nominee willing to serve. Some people agree to be considered, then withdraw when they find out how intrusive and extensive the scrutiny has become. Some go through all the investigations and questionnaires, then withdraw because there is still no end in sight. Talented people like Anne Hall, Bobby Inman, Stanley Tate, Peter Burleigh, and Laurence Pope all gave up in frustration.

Once a president locates willing appointees, the process mistreats—some would say abuses—them. William Gould was a Stanford law professor and a distinguished labor lawyer when he agreed to be President Clinton’s nominee to head the National Labor Relations Board in May 1993. He dutifully informed the Stanford administration that he would take a leave from his teaching and made the usual plans to move to Washington. But his appointment was not confirmed for ten months, leaving him in a prolonged, uncomfortable limbo. Some opponents of his views on labor issues circulated charges that he had run up large gambling debts. The rumors were unfounded, but putting them to rest took several weeks of “investigation” during which he heard little from the White House and almost nothing from the Senate.

This was no aberration. Anthony Lake, who endured a similar experience after his selection as CIA director, described a contemporary nomination as little more than a “political football in a game with constantly moving goal posts.” The process, he said, is “nasty and brutish without being short.”

How Can Presidents Be Accountable?

The current appointment process undermines the accountability of the president to the American people. Imagine this: after a lengthy search, you are aggressively recruited to lead a large corporation. The hiring committee tells you that it has chosen you because it admires your vision of what the company can become. It wants you to do whatever is necessary to increase the company’s profits and to ensure its future strength. This is a job you’ve been seeking, so you’re anxious to start and you begin thinking about the kinds of people you’ll need to recruit to head up the company’s important divisions.

But then the hiring committee says, “Oh, by the way, did we mention that all of your top personnel choices will have to be approved by a committee that includes some of your worst enemies, any one of whom can blackball any of your selections?”

Who would be willing to run a company under those conditions? Who would be willing to be held accountable for its performance? Yet that is precisely the situation that modern American presidents face. The American people will hold them accountable for their leadership of the government, but in a system that now routinely denies them the freedom to pick their own management teams.

Relentlessly Revolving Doors

The appointment process also exacerbates turnover and inconsistency in leadership. A 1994 GAO report examined turnover in 567 Executive Schedule positions from 1981 to 1991. In the 409 positions with no fixed term of office, the incumbents’ median length of service was only 2.1 years. Appointees in eight departments had median tenures of less than two years; the lowest was 1.6 years. Between 1981 and 1991 the Commerce Department had seven assistant secretaries for trade development, the Justice Department seven deputy attorneys general. In 15 years the Federal Aviation Administration had seven appointed and four acting administrators. In 14 years the Federal Housing Administration had thirteen commissioners. And the General Services Administration had eighteen administrators in 24 years. Could anyone reasonably argue that this is a sensible way to manage a large and complex government?

The Challenge to Majority Rule

Today’s appointment process undermines the central democratic principle of majority rule. The U.S. Senate, which must approve presidential appointments, is the least representative legislative body in the democratic world except for the British House of Lords (and the Blair government has been dealing with that). Every state gets two votes, regardless of size. In 1787 the largest state had 19 times the population of the smallest. Now the ratio is 69:1. Today, half the Senate is elected by 15 percent of the American people.

And the problem is only getting worse. Almost all the population growth in the United States in the foreseeable future will be concentrated in a few populous states. By the middle of the next century, as few as 5 percent of the population may well have majority power in the Senate. Even now, only 10 percent of the U.S. population elects 40 percent of the Senate. By using or threatening a filibuster, senators representing little more than 10 percent of the nation can block presidential appointments.

As the Senate has grown more energetic in its opposition to presidential personnel nominations, its own malapportionment and undemocratic practices have become more glaring and distressing anomalies. A single senator can prevent unanimous consent agreements and place a hold on a nomination. A committee chair can kill a nomination, as Jesse Helms killed William Weld’s posting to Mexico, by simply declining to hold a hearing.

Insider Government

The singular promise of the American approach to filling top positions in government has always been to allow elections to blow fresh breezes through Washington, to provide infusions of new blood for the body politic. Whatever cost this approach might impose in diminished professionalism and inconsistencies in administration would find due compensation in its constant replenishment of energy and enthusiasm.

Perhaps that was once the case. It is no longer. Today most presidential appointments offer little in the way of a “fresh breeze” or “new blood.” Instead, our government is now largely run by a governing class. A growing majority of appointees these days comes from the Washington metropolitan area, especially from think tanks, congressional staffs, and special interest groups and trade associations. A Presidential Appointee Initiative study of appointees in the past three administrations found that 58 percent were working inside the Washington beltway when they were appointed.

In 1998, for example, President Clinton made three appointments to the International Trade Commission. Thelma Askey came from her job as staff director of the House Ways and Means Trade Subcommittee; Steve Koplan had been a trade specialist for the AFL-CIO and then a lobbyist for Seagrams; Jennifer Hillman was general counsel to U.S. Trade Representative Charlene Barshefsky. Moving to their new jobs meant simply crossing the street.

Political Bypass Operations

The breakdown of the contemporary appointment process is causing presidents to avoid it altogether in filling positions. Senate aggressiveness over appointments is leading, ironically, to a shrinking Senate role. The simple reality is that presidents are unwilling to play a game that they often lose. So they do what losers usually seek to do: change the rules—or change the game.

To avoid confrontations, presidents delay making appointments, choosing instead to leave positions in the hands of acting officials or to make recess appointments. The past four administrations have averaged nearly 20 recess appointments a year. In February 1998 “acting” officials held one of every five cabinet department jobs that require Senate confirmation—64 out of 320 slots. For most, the administration had not even sent a nomination to Capitol Hill. Of the 64 acting officials, 43 had served beyond the 120-day limit imposed by the federal Vacancies Act. John C. Keeney headed the Justice Department’s Criminal Division for two and a half years before a nomination was finally sent to the Senate in 1999. Jonathan L. Fiechter served from 1992 until 1997 as acting director of the Treasury Department’s Office of Thrift Supervision, without ever being nominated. The FDA was officially leaderless for 18 months before Jane Henney was confirmed in November 1998.

What to Do?

The problem could not be clearer. The appointment process does not work. It doesn’t accomplish what it should and it does many things it shouldn’t. Would any other American institution tolerate a process that so badly served its substantive and administrative purposes? What are the options for solving the problem?

One approach—that chosen by most other national democracies—would be to end the confirmation requirement completely. Make executive appointments an executive prerogative. Take the legislature out of the process. Let the president choose his own appointees and be held accountable for their collective performance at election time. Appointees would have to abide by the law in their actions, and they could be impeached. But they would be the president’s appointees.

A second option is to require Senate approval for fewer appointees, either by reducing the number of presidential appointees (both the 1989 Volcker Commission and the 1996 Twentieth Century Fund task force recommended reducing the number by a third) or by limiting political appointments to the top few positions in each department and to their immediate special assistants. The latter approach would cut the number of appointees substantially, replacing them with career senior executives—as in most other democracies.

A third option, a less radical variant of the second, has been the choice of most panels and reform commissions that have studied the appointment process over the past two decades. It would do away with many of the worst defects of the current system, by, for example, eliminating, or at least putting strict time limits on, Senate “holds” or by prohibiting Senate filibusters on appointments. Through a fast-track process, the Senate would have to vote up or down on a nomination within a fixed time, say 45 or 60 days, or, like the old legislative veto, confirmation would occur automatically unless the Senate by majority vote rejected a nomination within 45 days of its receipt. Another possibility would be to limit the confirmation requirement to executive schedule appointments and judges.

Numerous lesser solutions have also been proposed, again with most coming from earlier reform efforts. Personnel staffs and investigatory agencies could be augmented during presidential transitions to better handle the crunch. The FBI full-field investigation could be rationalized, so it is not one-size-fits-all. Ethics laws, especially the post-employment restrictions, could be made less draconian and decriminalized. Nominees’ financial disclosure forms and other reports and questionnaires could be simplified and reduced in number. Confirmation hearings could be waived for noncontroversial appointments. A new Senate Office of Confirmations could centralize and streamline the reviews of nominees before committees hold confirmation hearings. Appointee salaries could be increased to attract more talented people and keep them longer. Appointees could be given a salary bonus for every year on the job after the first two. An office could be created to provide transition assistance and orientation for new appointees.

A final set of options—equivalent to taking two aspirin and calling the doctor in the morning—is merely hortatory. We could exhort presidential candidates to do a better job of transition planning or even name their cabinets before the election. We could urge presidents to devote more attention to team-building and to making public service more family friendly. We could encourage participants to exercise greater civility in the appointment process. We could press the media to exercise more balance and caution in reporting on appointment matters.

Past Time for a Change

The contemporary presidential appointment process is slower, more cumbersome, more contentious, more repellent to talented Americans, and more distant from the purposes of good government than it has ever been. For too long we have turned away from its excesses, accepting them as the inevitabilities of high-stakes politics. It is past time to begin rebuilding and reinvigorating the way executive and judicial personnel are selected. If we merely continue doing what we’ve been doing, then we will surely continue getting what we’ve been getting. That wasn’t good enough for the late 20th century, and it certainly won’t be good enough for the 21st.