It’s difficult not to be skeptical about the recent calls from Senators of both parties to reform the judicial nominations and confirmations process. This is not because their concern about the problem is ill-founded or insincere — they are correct that the process is broken and needs to be fixed, and earnest in their worry about the consequences that the increasingly bitter and partisan disputes may have on the Senate.
It is because the executive branch appointments process has also been broken and in need of repair for quite some time, and the Senate has had every opportunity to fix it, yet it has failed to act.
The flaws of the executive appointments process have been well documented, and sensible reforms have been proposed for years. Finally, in the last session of Congress, responsible, bipartisan legislation was introduced in the form of the Presidential Appointments Improvement Act of 2002. The legislation proposed to streamline the financial disclosure process for executive branch employees, require agencies to prepare a plan reducing the number and level of positions requiring a presidential appointment, and require the director of the Office of Government Ethics to review the conflict of interest laws and make recommendations improving their uniformity and efficiency.
Although the bill was reported favorably by the Governmental Affairs Committee and placed on the Senate calendar in May 2002, it languished there with no action taken. Sen. George Voinovich (R-Ohio), to his credit, recently reintroduced this legislation, but whether the bill will suffer the same fate is not yet clear.
Other reforms were proposed before the Governmental Affairs Committee in April 2001, in testimony given by former Sen. Nancy Kassebaum Baker (R-Kan.) and former Office of Management and Budget Director Franklin Raines, then co-chairmen of the Presidential Appointee Initiative. The reform agenda they presented included recommendations to make changes in Senate rules, such as limiting the imposition of “holds” by all Senators to a total of no more than 14 days; requiring Senate confirmation votes within 45 days after receipt of a nomination; and allowing nominations to be reported out of committees without a hearing upon the concurrence of a majority of committee members of each party.
Yet the Senate has not acted on any of these recommendations, either. But now we find this same Senate hand-wringing over the state of the judicial appointments process and proposing reforms, after they have already demonstrated their inability to produce results in fixing the executive presidential appointments process, arguably easier to reform.
The fact that judicial appointments are a very different kettle of fish than executive branch appointments is no excuse for their inaction, but rather more cause for concern. Judicial appointments are often so controversial because they involve lifetime tenure. Executive branch appointments do not have that baggage to carry.
There may be one reason for hope, and that is that the initial call for action came from Senate freshmen. They are correct to say that they are uniquely qualified to propose the judicial reforms because they were not party to any of the past offenses. But they are also in the unique position of having not been in the Senate long enough to become so completely enamored of their power and so utterly reluctant to relinquish even a bit of it through changing their own rules, that it stands in the way of accomplishing real reform.
These Senate freshmen now have the opportunity to not only propose change, but also to act to make it happen. Their call for fairness to judicial nominees in a letter to party leaders reflects the same call for fairness to executive nominees that was made in an open letter from more than 200 past executive appointees to President Bush and Congress in November 2002. Now is the time to answer that call.
Before tackling judicial reform, they can warm up for that fight by joining with Voinovich to take action on his legislation, and they can propose the necessary changes to the Senate rules that would lead to long-overdue improvements in the presidential appointments process.
Then they can take on judicial appointment process reform.
Carole M. Plowfield is deputy director of the Presidential Appointee Initiative at the Brookings Institution.