The Senate and Executive Branch Appointments: An Obstacle Course on Capitol Hill?

Bolstered by analyses from both journalists and academics, the conventional wisdom now holds that the Senate has become increasingly hostile to presidential appointees. Would-be judges, justices, ambassadors, commissioners, and executive branch officials are “borked” by vicious special interests and their Capitol Hill co-conspirators. Appointees are “held hostage” by senators who seek substantive trade-offs or the confirmation of their own favored candidates for judicial or regulatory posts. Senators place so-called “holds” on nominations, thus delaying matters interminably. All in all, the Senate’s performance, at least as commonly portrayed, does little to enhance the appointment-confirmation process. Quite the contrary. The Senate, to recall Robert Bendiner’s description of more than 30 years ago, seems a major culprit in the lengthy and often distasteful politics of confirmation—a veritable “obstacle course on Capitol Hill.”

This characterization fits with our broader understanding of the Senate of the past 20 years. As detailed by political scientist Barbara Sinclair and her fellow congressional scholars, the Senate has become both highly individualized and extremely partisan. At first blush, such a pairing seems unlikely—would not senators in a highly partisan legislature subordinate their individual desires for the good of the entire partisan caucus? But the Senate, once a bastion of collegiality, has become less civil, less cordial—sometimes almost rivaling the raucous House of the 1990s in its testiness. The lengthy, increasingly bitter partisan stand-off over the final year of the Clinton administration has given further credence to the perception that the Senate has become deeply hostile to appointments from a Democratic executive.

Still, headlines, assumptions, and conventional wisdom can be wrong, to a greater or lesser extent. We might do well to examine the data on confirmations. Do Senate confirmations take longer than they used to, especially in the modern era? Are more nominations withdrawn or returned to the executive?

Second, we might well ask how Senate processes might be altered in a partisan, individualistic era, especially when the upper chamber, unlike the rule-dominated House, usually operates through the mechanism of unanimous consent—that is, a single senator’s objection can delay, if not stop, the normal legislative process. Even if we find that the conventional wisdom is accurate and that presidential appointments often run into a congressional roadblock, there may be little that can be done within the legislative branch. Indeed, Christopher Deering’s assessment of Senate confirmation politics, circa 1986, bears repeating: “The relationship between the executive and legislative branches…remains essentially political…. The Senate’s role in the review of executive personnel is but one example of that relationship. The Senate’s role in the confirmation process was designed not to eliminate politics but to make possible the use of politics as a safeguard…a protection against tyranny.” Circa the year 2000, one might well argue that more is going on than “protection against tyranny,” but exactly what remains open to question.

The following discussion focuses on 329 top policymaking, full-time positions in the 14 executive departments that require presidential appointment and the approval of the Senate. Ambassadors, regulatory commission slots, military commissions, and federal attorneys are excluded.

Executive Branch Appointments and the Senate, 1981?99

To understand the magnitude of any “problem” with Senate confirmations of executive branch appointments, we need to know three things. First, how lengthy is the Senate confirmation process, and to what extent do some appointments take a disproportionately long time to be resolved? Second, how many appointments are withdrawn and returned? And third, how are appointments processed under differing conditions, such as divided government and various periods of a presidency (especially during the transition to a new administration as opposed to the remainder of a president’s tenure)? Because the available data do not allow for systematic explorations before the Reagan administration, over-time comparisons are limited. Still, some trends do begin to emerge.

First, the confirmation process has grown longer. In 1981, the Republican Senate took an average of 30 days to confirm Ronald Reagan’s executive branch appointees; in 1993, the Democratic Senate took 41 days to confirm Bill Clinton’s first nominees, an increase of 37 percent. Six years later, in the first session of the 106th Congress, the confirmation process had dragged out to 87 days, more than twice the 1993 figure and almost three times that of 1981. The comparisons are skewed somewhat by the Republican control of the Senate in 1999 and the less urgent, less visible nature of confirming appointees late in an administration, as opposed to the initial round of appointments that receive considerable attention given the need to put a government in place a few weeks after the November election.

Still, the process has grown longer, both early and late in an administration. In 1992, for example, a sample of George Bush’s appointments during the last year of his presidency (and facing a Democratic Senate) averaged 60 days for confirmation, in contrast to Clinton’s 86 days in 1999 and early 2000. Thus the typical 1999 confirmation process averaged almost three months when Congress was in session. Taking into account the 34 days of late-summer congressional recess, the confirmation process of 1999 averaged 121 days—almost exactly four months. The positions, of course, did not necessarily remain vacant, because the 1998 Federal Vacancies Reform Act allowed acting officials to fill many slots. Still, the lengthening Senate confirmation process indicates that a problem does exist—all the more so given the increasing time that the president has taken to make appointments.

A second data set relates to the likelihood that a president’s appointments will be confirmed. How often does the Senate return appointments to the president or cause nominations to be withdrawn? Again, looking at the rates under differing circumstances makes sense. The president is likely to do better with appointments he makes right after being elected than with any other, and divided government may affect confirmation rates.

As reported in table 1, Presidents Reagan, Bush, and Clinton fared about the same in winning confirmation for their nominees. All three won approval of more than 95 percent of their appointees in their administrations’ first two years, but did less well for the rest of their tenure in office. To the extent that a trend emerges, it reinforces the inference that the Senate has put up more obstacles over time. Reagan’s nominees were confirmed at an 86 percent clip between 1983 and 1988, whereas Clinton won approval for only 79 percent of his appointments. But Clinton faced a Republican Senate for the entire six-year stretch, while Reagan dealt with a Democratic chamber only in his last two years, when his confirmation rate fell to 82.5 percent (much like Bush’s 81.6 percent success rate in 1991-92, under similar conditions).

A summary view of confirmations over the past two decades demonstrates that the Senate process has grown longer, that divided government lowers confirmation rates a bit, and that the president’s capacity to win Senate approval for his nominees declines modestly. At the same time, President Clinton did win confirmation of 96 percent of his nominees in the first two years of his administration, albeit with less dispatch than did Ronald Reagan in 1981.

This leads us to consider whether the Senate is truly the culprit here and, if it is, whether anything might be done to affect the way the chamber handles the confirmation process.

The Senate: Partisan, Individualistic, and Separate

Aside from anecdotal evidence of particular bitter confirmation fights, such as former Senator John Tower’s failure to win confirmation as secretary of defense in 1989, or ineptly handled appointments, such as Lani Guinier and Zoe Baird in the Clinton transition, we have little systematic data on how the Senate affects confirmation politics in the post-1980 era of increased individualism and stronger partisanship. Nevertheless, convincing evidence does exist that the Senate has become both more individualistic and more partisan. Barbara Sinclair, for example, reports steady growth in filibusters over the past 40 years, especially in the past 20, and Sarah Binder and Steven Smith demonstrate that the use of filibusters continues to reflect the policy goals of individual senators, groups of senators, and, at times, the minority party. Moreover, the Senate continues to consider itself a co-equal partner within the appointment process. As separation-of-powers scholar Louis Fisher observes, “The mere fact that the President submits a name for consideration does not obligate the Senate to act promptly.” Indeed, the Senate’s willingness to sit on a nomination may reflect its status in a “separate-but-equal” system.

Still, the unlikely combination of individualism and partisanship surely defines the contemporary Senate. As Sinclair summarizes, by the mid-1970s, the Senate “had become a body in which every member regardless of seniority considered himself entitled to participate on any issue that interested him for either constituency or policy reasons. Senators took for granted that they?and their colleagues?would regularly exploit the powers the Senate rules gave them.” Senators also emphasized “their links with interest groups, policy communities and the media more than their ties with each other.” And, notes Sinclair, by the late 1980s, “Senators were increasingly voting along partisan lines. In the late 1960s and early 1970s, only about a third of Senate roll call votes pitted a majority of Democrats against a majority of Republicans. By the 1990s, from half to two-thirds of roll calls were such party votes. …By the 1990s a typical party vote saw well over 80 percent of the Democrats voting together on one side and well over 80 percent of the Republicans on the other.” In fact, in the 105th Congress, Senate party loyalty scores slightly exceeded those of the House, which has been seen as the more partisan chamber.

Unsurprisingly, the heightened individualism and partisanship has affected the confirmation of executive branch nominees. Guarantees by the Senate leadership to the contrary, every senator can place a “hold” on a nomination?delaying it, if not delivering a death sentence—though this tactic has been used more visibly on ambassadorial than on executive department appointments.

Even noncontroversial nominations can fall victim to highly partisan Senate politics, as nominees are “held hostage” to other nominations, to appropriations bills, or to substantive legislation. Where there is real controversy, as with the appointment of Bill Lann Lee to head the Justice Department’s civil rights division, partisan conflict increases and extends beyond Congress to the Senate’s relationship with the White House.

Confirmation and the Senate

The great majority of presidential appointees to high-level executive positions win approval by the Senate, although the success rate hovers at about 80 percent once a president has initially constructed his administration. Adding to their uncertainty, these later appointees must wait an average of four months for the Senate to act, once it has received their nomination. For these nominees, the process is long, and the outcome uncertain. Add to this the partisan politicking and the intense scrutiny, and it is no wonder that some potential officeholders decline the honor of nomination.

Might the Senate smooth the way for future nominees? Given the profound changes in the chamber over the past 25 years—the great latitude allowed individual members and the intense partisanship that dominates much decisionmaking—it seems unlikely that reformers would profit much from attempting to reshape Senate procedures. The best circumstance for speedier and more successful confirmations would be for the same party to control both the Senate and the presidency. Ronald Reagan did better in the mid-1980s with a Republican Senate than did either George Bush or Bill Clinton with opposing-party control in the 1990s. Bridging the separate institutions may be more valuable than seeking to reform an institution that has proven highly resistant to planned change.