It’s time to fix the broken Senate confirmation process

Presidents of both parties have seen key nominees bogged down by delays

The number of nominees for key executive branch positions left hanging in the Senate at Day 300 has gotten larger for each presidency, Stier writes. (Bill Clark/CQ Roll Call file photo)
The number of nominees for key executive branch positions left hanging in the Senate at Day 300 has gotten larger for each presidency, Stier writes. (Bill Clark/CQ Roll Call file photo)
Posted November 15, 2021 at 5:30am

Monday marks the 300th day of Joe Biden’s presidency, a pivotal time by which the “transition” is supposed to be in the rearview mirror and an administration can move forward with a full team – or at least the first string – of senior Senate-confirmed appointees on the job.

For Biden — as for Presidents Donald Trump, Barack Obama and George W. Bush — the reality has been far different.

None of them met this expectation due in large part to the high number of appointees (1,200) requiring Senate approval and an increasingly arduous, lengthy and partisan confirmation process.

In short, the political appointment and Senate confirmation processes are broken and in need of reform.

Based on the Partnership for Public Service’s tracking of about 800 full-time executive branch positions (not including judges, U.S. attorneys, U.S. marshals and part-time positions), the Senate as of Monday has confirmed a paltry 179 of the 419 individuals nominated by Biden. 

Trump had nominated 363 people for full-time positions and had just 201 confirmed by the 300-day mark in 2017, while Obama had 344 of 462 on the job and Bush 380 of 465 at this point in their presidencies.

For these key executive branch positions, the number of nominees left hanging in the Senate at Day 300 has gotten larger for each presidency.

In passing the Federal Vacancies Reform Act of 1998, Congress intended to ensure that newly elected chief executives would respect the Senate’s “advise and consent” responsibility by nominating candidates for Senate-confirmed roles rather than sidestepping the process and relying on “acting” officials who would not necessarily be accountable to the legislative branch. It also wanted to give a new president adequate time — 300 days — to nominate leaders for critical government positions, although it imposed no timeline on itself.

Presidents of both parties have learned the hard way what the data makes clear — 1,200 political appointees requiring Senate confirmation is far too many for the chamber to process, and prolonged vacancies in key positions reduce the capacity of presidents to govern. Acting officials lack the same formal stature to make decisions and engage in long term planning and policymaking.

As the process has bogged down because of the high number of appointees and individual senators slowing the pace of confirmations for political ends, the Senate itself has grown weaker. It is harder to conduct oversight and hold agency officials accountable when those “in charge” are temporary. Senate debate time is also consumed by processing nominations, and this limits the ability of senators to address urgent matters for their constituents.

For Biden, the slow confirmation process has resulted in important leadership gaps.

The administration, for example, has nine Treasury Department nominees awaiting Senate consideration for positions such as undersecretary for terrorism and financial intelligence, and assistant secretaries for financial institutions and financial markets. 

Biden recently went to the G-20 and Glasgow climate summits having only four of his ambassadorial choices confirmed — with dozens of nominations held up by senators to gain leverage over the administration. Additionally, the State Department is operating without a host of confirmed assistant secretaries, including those dealing with arms control, international security, near eastern affairs and democracy and human rights. 

At the Department of Transportation, which will play a big role in implementing the $1 trillion infrastructure law, nominations awaiting Senate consideration include assistant secretaries responsible for budget and programs, aviation, trucking, railroads and shipping. 

Since the Reagan administration, the number of presidential appointees requiring Senate confirmation has grown by 56 percent, while the average Senate confirmation process now takes about twice as long as it did then. Besides the 1,200 requiring confirmation, the president has the prerogative to appoint an additional 2,800 to a wide array of government jobs.

The time has come to streamline this system by reducing the number of political appointees requiring confirmation.

This could be done by converting some Senate-confirmed positions to nonconfirmed presidential appointments, assigning more Senate-confirmed positions to fixed-length terms, converting some political appointments to nonpolitical career roles and turning some confirmed appointments on commissions and boards to nonconfirmed roles or to agency-controlled appointments. 

Other options include eliminating redundant and consistently vacant appointments, and making better use of the Senate’s “privileged” nomination process that is intended to create a streamlined path to a full chamber vote for some typically noncontroversial positions, including those for many part-time boards and commissions.

These changes would enable the Senate to focus on the positions for which advice and consent matters and rethink the status of positions that are of a management or advisory nature.

The intention of the framers in establishing the confirmation process was to allow presidents to staff administrations with the very best while limiting the power of the executive branch to install unsuitable candidates or use government positions for personal and political gain. 

This objective must be preserved, but the system is not working as intended. This malfunctioning process must be fixed to ensure that presidents can have a full team of capable, qualified and accountable individuals in place as quickly as possible while maintaining the Senate’s prerogative to advise and consent.

Max Stier is the president and CEO of the Partnership for Public Service, a nonpartisan, nonprofit organization committed to building a better government and stronger democracy.