WASHINGTON, DC – This morning, U.S. Senator Rob Portman (R-OH), Ranking Member of the Senate Homeland Security and Governmental Affairs Committee, highlighted the need for Congress to examine the current Senate confirmation process of presidentially appointed nominees in an effort to make the process more thorough and improve the quality of nominees. The expert witnesses at the hearing agreed with Portman that reform was needed in order to ensure the most qualified individuals were nominated for the positions.
A transcript of his questioning can be found below and a video can be found here.
Portman: “Well, first, thanks to all three of you. You all have made some good suggestions. I still go back to the two points I raised in the opening. One is the point that this is not all about the Senate. Having been one of the associate counsels to the President for George H.W. Bush, who looked at nominees and their financial disclosure forms and so on, we thought it was pretty arduous at the time, but it’s become much more so. The point you’ve made today, I think, was that 30 percent of vacancies never receive a nomination, and we’ve talked a little about, Professor O’Connell, just talked about acting officials and how that has increased and, in effect, actings have taken away the Senate role for confirmation. So anyway, I won’t ask for more on that today, except to say that we would like, for the record, and maybe the Partnership is the place to look, to, give us some more specific suggestions on the pre-Senate nomination process, the appointment process, and that’s within the purview of this Committee. So it’s part of our oversight responsibilities.
“Second is just the quality of candidates. We’ve heard a lot today about making the process more efficient. Again, I think there’s a lot of merit to that. But also I get back to my point about improving the quality of nominees. Are there any changes to the Senate procedures, perhaps short of going back to a 60 vote margin, to incentivize that more qualified nominees be recruited and nominated? I open that up to all three of you.”
Kristine Simmons, Vice President of Government Affairs at the Partnership for Public Service: “Senator Portman, I’m happy to start and invite my fellow panelists to chime in. One of the things that we were surprised to discover as we began some of our work around presidential transitions and the high number of appointees that a new administration must confirm is how few positions are associated with position descriptions. We’ve actually created over 400 position descriptions that didn’t exist and are not available. So in some cases, it would be helpful for the Senate to have a better understanding of what the real job is for some of these positions. And you articulated positions where you’re very familiar with what’s required, and the Senate has even put statutory qualifications in place. So we think a place to start is to consider whether there are adequate descriptions around the qualifications that you want, in particular nominees for key roles in government. And making sure that there is an understanding, even among people who are being considered for those positions, as to what the job actually requires.”
Portman: “Mr. White, any thoughts on that?”
Adam White, Co-Executive Director of the C. Boyden Gray Center for the Study of the Administrative State at George Mason University and Senior Fellow, American Enterprise Institute: “Well, to your point about Senate procedures, I do think this is crucial. I understand there are strong arguments for reducing the threshold for confirmation in terms of cloture on nominees, but the fact is the Senate’s procedures have become, as the Committee knows more than anybody, ever more sort of straight majority rule in more and more situations with less and less deference given to the judgments and the procedural powers of individual Senators. And so we are seeing that filter through to the quality of the nominations. I think in general, the underlying problem here is that, and this goes beyond just appointments, but in general, the administration is ever more identified exclusively with the President, not the President and the Senate. The administration is seen as something the Executive takes care of while the Senate worries about other things. And so I think it’s crucial for the Senate to reconsider its procedures surrounding Advice and Consent to slow things down for the most important nominations and use them as real points of leverage for oversight of the agencies in general.”
Portman: “So fewer nominees, but those that are important positions from a policy perspective, most important to spend more time on vetting those individuals and perhaps, therefore, improving the quality of those individuals.”
Mr. White: “Absolutely. And if I may, in terms of the criteria for removing offices out of the Senate Advice and Consent role, I think it is important to keep in mind each particular agency’s substantive powers. Of course, the offices vary from agency to agency, but the agencies themselves vary in terms of their responsibilities overall. And so I would urge Congress to be more cautious in removing the Senate Advice and Consent role for the agencies that have the most impact on day-to-day life. Of course, that’s measured in a number of ways. OIRA, of course, keeps tallies of the costs and benefits of rules imposed by agencies, and so it might be worth keeping that in mind when you decide which offices and which agencies to remove from Advice and Consent.”
Portman: “Well, Professor O’Connell, you talked about this. You said that 30 percent of these jobs are part-time jobs, usually boards and commissions, and we talked earlier about how 30 percent of the vacancies never receive a nomination at all. In other words, in effect, there may be some overlap there, but probably not much. 60 percent are either not nominated because an acting is chosen. So the administration never even nominates somebody, and another 30 percent are for part-time jobs. So in effect, it’s a relatively smaller group, less than half probably, that are actually getting attention that are substantive policy positions. Is that fair to say, Professor O’Connell, or have I missed my math there?”
Anne Joseph O’Connell, Adelbert H. Sweet Professor of Law at Stanford Law School: “I’m not exactly sure. The 30 percent that don’t receive a single nomination in the first two years from the research of Professor Lewis and Mark Richardson does not overlap considerably, as I understand it, with the part-time positions, because many of those part-time positions are ways of rewarding those who helped with the campaign. And so in that push in mid-December, seven, I think, of the nominees that were confirmed in the final week in December kind of came from those boards, whereas assistant secretaries were still sitting. But I do think you could remove some of these part-time positions, of course, within the confines of the Appointments Clause. The Senate could really focus on these key policy positions which also have constitutional implications, as Mr. White has explained. And so that would be important. I would just say one thing back to your question on the qualifications is, I guess I do think that many of agency officials who were put up by the President, confirmed by the Senate and even those that present some hurdles are extraordinarily well-qualified, and they are undergoing considerable sacrifices to serve our government. I do think by reducing some of the vetting and the forms not to weed. Of course, we want to have qualified people, but what we have now is an insider game. Just the percentage of people coming from the DC area is quite high. And there are well-qualified people, as you know, from states other than Maryland, Virginia, and DC, and some of the changes could help expand the pool to get more diverse voices into the federal government.”
Portman: “Well, I couldn’t agree with you more, and in particularly with regard to Ohio. Thank you. But seriously, again, I’ve gone through two of these confirmations, but I will say prior to 2013, when there was a 60 vote margin required, I think the quality of the candidates was better. I just think that and I think some of these people that we end up passing with a strict party-line vote would never have been nominated had there been a 60 vote margin, same is possibly true with regard to our judges, because, let’s face it, it would require more bipartisanship. Now, the counter to that would be that the Senate has become more partisan, which I think is also true. But I must say I think the quality of nominees since 2013 has changed. And again, I don’t think some of these nominees that are now being nominated who again, have been online, I guess there weren’t many people worried about what Twitter was saying back in 2013, but some things they’ve said and done, and then the positions they are being put up for, like we talked about, the Merit Systems Protection Board, someone who is openly and overtly partisan. It just doesn’t make sense. There’s got to be of the hundreds of millions of people in America, someone else who can step forward, maybe from outside the DC bubble, who is qualified for those kinds of positions. So anyway, I don’t disagree that the process is too arduous. And ultimately what we want to do is attract the best people to government. And yet I do think that the reality is that the quality of the candidates matter and also that the Senate does have an important role of Advice and Consent. We have to figure out how to make that work for those important positions that really matter. So with that, Mr. Chairman, I’ll turn it back to you. And again, I thank our witnesses very much and look forward, if you could, from the Partnership, Kristine, following up with some more specific recommendations for us. Thank you.”
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