by Brian C. Kalt
The Constitution directs the President and the Senate to work together to hire federal judges and top executive officials. Unfortunately, the “PAS” process (presidential appointment and Senate confirmation) falls well short of this constitutional ideal. This essay will identify some problems with the process, and then discuss the important role of politics in it. This will lead to a counterintuitive conclusion: the main problem with the current appointments climate is that the President and the Senate are not being confrontational and combative enough.
I. Three Problems with the Process
A. Too Large and Too Slow
There are currently over 1,100 PAS offices in the federal executive branch, each of which must be filled anew by an incoming President.[1] It is hard to do promptly. Eighteen months into President Obama’s term, twenty-five percent of “key policymaking positions” had not yet been filled.[2] The process is like trying to fill a sieve; before the last cadre of executive officers is picked and confirmed, earlier ones have already started leaving.[3] One study measured the average vacancy rate between 1977 and 2001 at twenty-five percent, and as high as fifty percent near the end of some administrations as officers left to beat the rush for private-sector jobs.[4]
Filling judicial vacancies is a Sisyphean task as well. President Obama began his term with fifty-five judicial vacancies; by the end of 2010, there were ninety-six. In that time, he managed to appoint 62 judges, but 103 new vacancies arose (about half awaited a nominee; the others’ nominations were pending in the Senate).[5]
The burden could be smaller; Congress has given too many “inferior” offices PAS status, even though the Constitution does not require Senate confirmation or even presidential appointment for them.[6] The process could also be sped up. Presidents take too long to select nominees.[7] The Senate confirmation process adds time, even without the obstructions discussed in the next section. Perhaps the biggest impediment is background checks. Nominees are scrutinized by several separate actors, which entails filling out redundant, intrusive, and often pointless paperwork. As one critic described the system in 2008, “[n]ominees must wait for months as the White House, FBI, IRS, Office of Government Ethics, and Senate inspect the 60 pages of forms that must be filled out on the way to confirmation, including one that still has to be completed by typewriter.”[8]
B. The Super-Majoritarian Difficulty
The PAS process is inefficient enough when everyone tries to move things forward—but not everyone does. The power of the presidency has increased tremendously in the last eighty years, largely at Congress’s expense. Senators have used their stranglehold on PAS appointments as a way to claw back some of that power.[9]
Technically speaking, confirming a PAS nomination requires a majority in the Senate. Practically speaking, however, sixty senators are needed to fend off a filibuster. The Senate “blue slip” process empowers individual senators to hinder nominations for judgeships in their own states. Most super-majoritarian of all is the indefinite “hold,” with which any senator can freeze any nomination.
Because nominations require only a majority vote, these super-majority tactics work by preventing that vote from taking place. But delay is a tool of majorities too; rather than vote a nominee down and defeat the President directly, Senate leaders can keep a nomination bottled up in committee, or even after committee action, leave the President and his nominee in limbo. In late March 2010, for instance, President Obama noted that of his 217 nominees pending before the Senate, 77 were pending “on the floor,” having made it through committee; 44 of those had been waiting more than a month.[10]
Some commentators defend these delaying maneuvers, arguing that they strengthen the Senate’s checking function, and force the President to make more moderate choices.[11] Their argument would be more persuasive if the obstructers only used their power to oppose nominees on the merits. Most often, though, the obstructers are just extracting concessions on other, unrelated Senate business.[12]
The problem persists because senators guard these prerogatives jealously. They may complain about filibusters and holds when they are in the majority, but they are skittish about actually ever changing things. Indeed, they quickly swap talking points with the other side whenever control of the Senate changes hands.[13] This year, surprisingly, the Senate actually eliminated a couple of its more objectionable delaying mechanisms, such as secret holds, but it left all of the others in place.[14]
C. Speeding Down Oak Street
The President has ways to bypass the Senate, and he has an incentive to use them when the PAS process breaks down. But like a driver who avoids traffic on the main road by speeding down residential side streets, Presidents who take this route trade one set of problems for another.
1. Recess Appointments
One “residential side street” is the recess appointment. If the Senate does not act on a nomination, the Constitution empowers the President to fill the office unilaterally (if temporarily) the next time the Senate recesses.[15] The Recess Appointment Clause was designed for an earlier era, when the Senate was in recess every year for several months at a time. If a vacancy arose during those long recesses, the President needed a way to fill it. Nowadays, the Senate takes frequent, but short, recesses.[16] It takes so long to fill vacancies when the Senate is in session that these brief recesses do not present urgent needs for extraordinary appointments. Nevertheless, the language of the Recess Appointments Clause is broad enough to accommodate modern Presidents’ more aggressive use of it.
2. Acting Officers
A second bypass is the appointment of acting officers. Federal law allows acting officers to occupy vacant posts during the wait for a permanent officer. The President can leave the old officer’s deputy in charge, pick another official from the same agency, or designate another PAS official from elsewhere.[17] The law imposes time limits on acting officers’ tenures, but these limits are often ignored and are not applicable anyway if the Senate is dragging its feet in confirming a replacement.[18]
3. Reallocating Power
A final technique is reallocating power. If a President wants to enfeeble a particular office, he can just put a low priority on filling it when it becomes vacant and there is little the Senate can do about it.[19] Given that Congress creates PAS positions to execute particular functions under federal law, this arguably violates the President’s constitutional duty to “take Care that the Laws be faithfully executed.”[20]
Presidents can also siphon power away from PAS offices and concentrate it in the White House instead. PAS officers exercise “significant authority pursuant to the laws of the United States.”[21] The White House staff is powerful but typically does not have this sort of direct legal authority; rather, it advises the President in the exercise of his authority. Therefore, the President can hire most of his staff without following any constitutional process.[22]
Counting employees “detailed” to the White House from executive agencies, there are several hundred “policy” staff in the White House.[23] The recent increase in policy “czars” has attracted notice too, not least because most are not PAS officials, and many in fact supplant PAS officials.[24] If the President reallocates power in these ways, he effectively neuters the PAS officer who is supposed to deal with an issue, subordinating him or her to the non-PAS staff member. This gives the President less reason to be prompt, careful, or aggressive when nominating those PAS officers.
4. Sacrificing Ideals
These bypasses are suboptimal even from the President’s point of view: recess and acting appointments are temporary; vacant offices are vacant; and special advisors lack powers, like issuing regulations, that they would have as PAS officers.[25] But even with these limitations, the President can distribute massive power without going through the PAS process. The Senate may deserve to be circumvented, but as argued further below, the overuse of these bypasses contributes to the President’s dysfunctional relationship with the Senate.
II. Politics
Notwithstanding the problems discussed above, most PAS positions are filled by the PAS process. The key, both when the system works and when it breaks down, is politics. This section will ruminate on this point.
A. Politics When It Works
Politics are the lifeblood of the PAS system. After all, the President and senators are politicians. It is unsurprising—indeed, it is intended—that a process defined by their participation would be infused with politics, rather than just with neutral principles of human-resources management.
The trick, as Christopher Eisgruber has eloquently explained, is to make the process political in the best sense of the term rather than the worst.[26] “Political” does not have to mean “demagogic,” “venal,” “mean-spirited,” or “focusing on partisan point-scoring rather than the public interest.” True, some of these things are inevitable features of our political culture. But when politicians actually accomplish things, it is by working with each other and hammering out compromises to please their respective constituencies. At its best, then, a “political” process is one that ensures deliberation, accountability, and consensus.[27] As Eisgruber makes clear, politics are not a defect of the PAS system, they are its principal feature, and we should embrace this fact.[28]
For the PAS system to function meaningfully, it requires conflict.[29] If the Senate were simply to rubber-stamp all of the President’s nominees, it would resolve the vacancy problem, but it would deprive the nation of a check on the President. When the Senate really scrutinizes the President’s picks, by contrast, it can hold him accountable.
The political character of the PAS process can soften its excesses. For instance, in 2010, when Senator Richard Shelby placed holds on seventy nominations because of a dispute over federal projects in his state, he quickly relented. The strong response from other senators and President Obama made it politically untenable for him to delay appointments over unrelated demands.[30] Similarly, high-stakes nominations (e.g., Supreme Court, cabinet secretaries) do not see the same level of obstruction (e.g., filibusters, holds) as their less important counterparts. If filling a vacancy is important enough, the President and the Senate will fill it;[31] conversely, when the political costs of obstruction are low enough relative to the political benefits of action, expect obstruction.
These equations are complicated by the wide range of issues the Senate handles. Appointments are just one more ingredient in the Senate’s complicated tangle of compromises, logrolling, and other deal making. Arguably, appointments should be different, because staffing the government is mandatory in a way that passing new legislation is not. But the special importance of appointments does not wall them off from the rest of the Senate’s business. Indeed, appointments provide a tempting opportunity for senators to kick a President when they think he is down.[32] At any rate, calculating the political costs and benefits of obstructing an appointment might require considering its effect on, say, education spending or foreign policy.[33]
Another complication is that senators put a high value on maintaining their ability to obstruct. Senators may seem myopic, obstructing nominations even though their opponents will be inspired to perpetrate paybacks when party control shifts. But pro-President senators are thinking about a future in which they are in a different position. By preserving the ability of their opponents to single-handedly obstruct the President’s nominations now, they are preserving their own ability to do the same at some later date.[34]
When the costs of obstruction are too low, “good” politics, with its deliberation and its accountability, breaks down. Perhaps the most stunning example of too-low cost was the recently eliminated “secret holds”; senators using them could prevent an office from being filled at virtually no cost to themselves. Their secrecy also meant that such holds conveyed no useful information to the country about the office, the nominee, or the objector. Secret holds did not advance the purposes of the PAS process in any way.[35]
Another maneuver that is too “quiet,” and which is still used, is the passive filibuster. Senators do not need to actually filibuster a nomination (i.e., talk it to death on the Senate floor) to defeat it. Current Senate procedures allow them to achieve the same effect merely by threatening a filibuster, so nominations get stalled or defeated by these low-profile, low-cost feints.
When the political costs of obstruction are high, by contrast, compromises are struck and obstructions are resolved.[36] If Presidents and senators fight back hard enough against obstruction, it shrinks away. There are countless examples, but a single well-trodden one must suffice. Senate Democrats filibustered several of President George W. Bush’s appellate judicial nominees. There was mainly silence from both sides, punctuated by occasional blustery rhetoric about how unacceptably extreme the nominees were, how the Senate was acting unconstitutionally, and so on. At a certain point, the number of vacancies grew too large for either side to countenance (my own circuit, the Sixth, was half vacant). In 2005, the so-called “Gang of 14” moderate senators from both parties agreed to end the filibusters and prevent the filibuster-killing “nuclear option” from being invoked. Under the deal, two of the nominations were killed. Seven others got a Senate vote, which were all successful (the three from the Sixth Circuit were unanimous; a fourth nominee won with more than sixty votes). The logjam was broken.[37]
People frequently complain about Senate obstructions, but talk is cheap. The President, his Senate partisans, and his Senate opponents all have ample power and influence. When they use it, they can cajole and publicly harangue each other until the political costs of obstruction are high enough to make a breakthrough deal worthwhile.[38] If the players are not inclined to use their power, then that is their choice. At that point, though, their complaints become much less compelling.
B. Politics When It Fails
President Obama has used the methods discussed in Part I.C to bypass the Senate, including making dozens of recess appointments and, most prominently, designating Elizabeth Warren as a “special advisor” rather than nominating her to head the new Consumer Financial Protection Bureau.[39]
The importance of “good” politics sheds new light on such actions. At first glance, these bypasses seem useful: if the Senate mistreats a nominee and prolongs a vacancy, the President reasonably uses his power to work around the Senate and do the people’s business. Looking deeper, though, these maneuvers represent political failures. They bypass not only the Senate but the entire political process, with all of its benefits. If the President and the Senate disagree, they should argue, struggle, and work it out. Avoiding conflict means avoiding that beneficial engagement.
A system is properly political not when there are no conflicts, but rather when conflicts produce results. If Presidents and senators work too slowly on appointments, but neither says much about it, there is little chance that either side will improve its efficiency. When senators block a nominee fairly noiselessly, without a vote, and then Presidents are quick to act unilaterally and bypass the system with an acting or recess appointment, there is no engagement—no deliberation, no accountability, and no development of a consensus.
Consider, by contrast, a system in which:
1) opposition senators speak out against a nominee (or the lack of one) prominently, forcefully, and persistently;
2) the President and his Senate supporters speak out in favor of a nominee (or against the opposition’s foot-dragging) prominently, forcefully, and persistently;
3) the opponents use parliamentary maneuvers to try to defeat nominations, but in public and “noisy” ways;
4) the proponents respond in similarly public and noisy ways; and
5) there are clear results, either from a vote or, in the shadow of a vote, from a compromise.
In such a system, everyone knows what is happening, and who is doing what. There are clear results. When each side conducts itself in a noisy way—a way that conveys information to the other side and to the public—the cost of pointless obstruction becomes too high to sustain.
This is an ideal, of course, and the reality of the PAS process has never been, and will never be, this robust. Politicians have only a limited amount of time, energy, and political capital, and it makes little sense to think that they expend all of it on appointments.[40] Still, the closer to this ideal, the better the PAS system will work.[41] To the extent that the system falls short, it is as a result of political choices, and it benefits the system to make those political choices more visible to the voting public.
In other areas, politics need not be this loud for things to get done. But here, the alternative of waiting for everyone to do a better job out of the goodness of their hearts simply has not worked. There are too many back doors, too many imperfect but easy ways out. A good appointments process requires noise.
C. Getting Specific
There are specific ways in which louder politics could lead to better results. Loudness itself is not enough, and it can be destructive; the players must be yelling the right things.
1. Balance
As a general matter, useful reforms that take power away from the Senate (like clearing away senators’ powers to obstruct, or removing the requirement of Senate confirmation for hundreds of positions) will be unpopular with senators unless there is an obvious and significant payoff.[42] Similarly, the President will not favor useful things that reduce his power (like delegating to cabinet secretaries the power to appoint their own underlings, or reducing the size and power of the White House staff vis-à-vis PAS officers) unless he gets some benefits in return. Any comprehensive solution must be carefully balanced, so that nobody is gaining or giving up too much power.[43]
2. Vacancies
Sometimes a post stays vacant, with the President not even bothering to bypass the Senate. This is bad for one of two reasons. If the post is important for the President to fill, it is bad to leave it unfilled. If the post is not important, it is bad to leave it standing, as opposed to legislatively demoting it to non-PAS status, or abolishing it altogether.
Fixing these sorts of vacancies thus requires that the President and Congress first hammer out to which category a particular vacancy belongs.[44] If the two sides do not agree on whether an office needs to be filled, noisy rhetoric about sluggish nominations and sluggish confirmations will miss the point.
3. Acting and Recess Appointments
At the time he makes a nomination, the President could communicate to the Senate whether and how he will use his acting or recess appointment powers if the Senate does not move quickly enough. Then, if the Senate drags its feet, it will know that it is acquiescing to the acting or recess appointment.
The President should not follow through on such a threat unless the Senate is proceeding in bad faith. If the Senate is on its way to rejecting a nomination, or is at least truly deliberating, it will not have given the same implicit approval of a bypass. Thus, the President must communicate not just which nominations could yield acting or recess appointments, but also what benchmarks and timetables he will use to judge the Senate’s good faith. Providing that sort of information would make things fairer, because the President would use his powers only after giving senators a reasonable chance to use theirs. It would also convey valuable information (who, what, when, and why) to both the political players and the public.
Some might call this whole strategy politically unrealistic. The President can potentially turn any stalled nomination into an acting or recess appointment, and he might not want to limit that implicit threat up front. He also might not want to sacrifice his power to unilaterally appoint people disapproved by the Senate. For its part, the Senate would likely resent having benchmarks and timetables dictated to it.[45] But consider the status quo. The President’s “implicit threat” has not made the Senate move quickly enough or fairly enough. Recent Presidents have shown restraint in not unilaterally appointing truly unpopular nominees. And while the Senate might resent being dictated to, key leaders could work with the President to draw up standards and timelines. The Senate might prefer this to being bypassed altogether.
4. White House Consolidation
Senators might not like the tremendous growth[46] in the White House staff, and they might find ways to strike back,[47] but they (along with the House) have enabled the situation. The President can rearrange, subdivide, and assign his staff largely as he sees fit, but he cannot grow it significantly by himself. Congress must agree to pay for it, and it obviously has done so. This might reflect Presidents’ strong bargaining position in budgetary matters, or it might indicate congressional sympathy for Presidents’ desire to consolidate their power over the sprawling federal bureaucracy and policymaking apparatus. Whatever the source, though, Congress acted affirmatively to make this happen.
At this point, any attempt to scale back the size and power of the White House staff would require either that: (1) Congress give significant concessions to the President in exchange for his agreement; or (2) the President be much weaker politically than any President in recent memory. As to point (1), Presidents typically have plenty of policy initiatives on which they might accept concessions from the Senate, but it is easier to imagine things staying in the appointments context. For instance, in exchange for the President shifting power back to PAS offices, the Senate could make concessions on how it handles nominations.
D. Quasi-Political Solutions
Fixing our first set of problems—inefficiency—mostly requires better leadership and management, but it still implicates politics at some level. For instance, to pick PAS nominees faster, Presidents should do moresearching and vetting before they are even elected.[48] Currently, there are incentives not to do this: it seems presumptuous; potential picks might become campaign issues; it would divert resources from the immediate task of getting elected. But being able to hit the ground running once elected is surely a compelling goal too. Candidates should be able to conduct their operations quietly enough, and to mutually disarm rather than investigate and attack each others’ proto-nominees.[49] More importantly, Congress should be able to muster a consensus to legislate resources for these conditional-transition efforts.[50] This would be politically neutral between candidates and between the President and the Senate. Moreover, nobody would sacrifice power, and everybody would benefit from the efficiency gains.
Similarly, reforming the background-check process would mainly require gumption,[51] and it would not alter the balance of power between the President and the Senate. If Congress is truly interested in reforming the PAS process, it could fund an enhanced personnel operation within the White House, which could work with the Senate to streamline the information-gathering process.[52]
Given that all sides would benefit from improved efficiency, it is somewhat surprising that more has not been done. Perhaps the reason is politics again; the fact that these reforms would be politically neutral means, conversely, that nobody sees much political gain in pursuing them. But here too, the solution is political confrontation. Some President or senator should be able to score political points by drawing attention to the truly ridiculous inefficiency of the current process, the fecklessness of its current participants, and the potential for creating effective solutions.
III. Conclusion: Reforms in Perspective
Commentators on reforming the PAS process often repeat the same suggestion: better dialogue between Presidents and senators. But here, “better dialogue” does not mean Presidents and senators being more accommodating to each other.[53] To really improve the PAS process, better dialogue must be more aggressive. As long as it is not—as long as the players quietly subvert the system, avoiding solutions rather than forcing them—the PAS process will continue to be dysfunctional.
[*] Associate Professor of Law and Harold Norris Faculty Scholar, Michigan State University College of Law. Thanks to Christopher Eisgruber, Barbara Bean, Jeremy Brown, and Paul Ricard for their suggestions and assistance.
[1] GPO Access, Plum Book (United States Government Policy and Supporting Positions) (2008), summarizes and tallies politically appointed positions. A useful quadrennial graph of PAS positions appears in Kazuyuki Sugawara, Presentation to U.S.-Japan Research Institute, Did President Obama’s Appointments Overcome Ideological Differences? 3 (Sept. 9, 2010), and it shows that the number of PAS positions has been steady since 1984.
[2] William A. Galston & E.J. Dionne, Jr., A Half-Empty Government Can’t Govern 1 (2010).
[3] See Anne Joseph O’Connell, Vacant Offices: Delays in Staffing Top Agency Positions, 82 S. Cal. L. Rev. 913, 919–20 (2009).
[4] Id. at 920, 962–63.
[5] United States Courts, Archive of Judicial Vacancies. This site does not include the Supreme Court; I added those two vacancies and confirmations.
[6] See U.S. Const. art II, § 2, cl. 2 (“Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”); cf.Galston & Dionne, supra note 2, at 8 (noting Senate’s jealousy regarding its confirmation power for some inferior officers); O’Connell, supra note 3, at 994 & n.381 (describing President Carter’s problems with, and ultimate reversal on, delegating hiring to cabinet).
[7] See Terry Sullivan, Reducing the Adversarial Burden on Presidential Appointees: Feasible Strategies for Fixing the Presidential Appointments Process, 69 Pub. Admin. Rev. 1124 (2009) (offering well-informed suggestions for massive efficiency improvements); Galston & Dionne, supra note 2, at 8–9 (detailing presidential slowness).
[8] Paul C. Light, A Bipartisan Agenda for Presidential Appointments, TheHill.com (June 28, 2008); seeSullivan, supra note 7 (critiquing forms).
[9] See Michael J. Gerhardt, The Federal Appointments Process: A Constitutional & Historical Analysis168 (2001) (noting recent trend toward less deference to presidential nominations in the Senate).
[10] Press Release, White House, President Obama Announces Recess Appointments to Key Administration Positions (Mar. 27, 2010).
[11] See, e.g., Catherine Fisk & Erwin Chemerinsky, In Defense of Filibustering Judicial Nominations, 26 Cardozo L. Rev. 331, 342–43, 351–52 (2005); John O. McGinnis & Michael B. Rappaport, The Judicial Filibuster, the Median Senator, and the Countermajoritarian Difficulty, 2005 Sup. Ct. Rev. 257 (2006); cf.Brent Wible, Filibuster vs. Supermajority Rule: From Polarization to a Consensus—and Moderation—Forcing Mechanism for Judicial Confirmations, 13 Wm. & Mary Bill Rts. J. 923 (2005) (contending that formal super-majority rule would produce moderation better than procedural mechanisms like filibusters).
[12] Amy Steigerwalt, Death to Nominations: Senatorial Courtesy, Holds, and Other Ways to Kill a Court of Appeals Nomination (2004) (unpublished manuscript) (collecting data to show how rarely obstructions of judicial nominations actually relate to the nominee).
[13] For a good account of how both sides misuse statistics in an attempt to distinguish themselves from their opponents, see E. Stewart Moritz, “Statistical Judo”: The Rhetoric of Senate Inaction in the Judicial Appointment Process, 22 J.L. & Pol. 341 (2006).
[14] Carl Hulse, Senate Approves Changes Intended to Ease Gridlock, N.Y. Times, Jan 27, 2011, at A20.
[15] U.S. Const. art. II, § 2, cl. 3 (“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”).
[16] The official figures for the last ten years (2001–10) saw the Senate in recess 45% of the time, but with a median length of only 12 days and an average of only 18 days. The longest recess in that period was 56 days. See U.S. Senate, Dates of Sessions of the Congress, 1789-present (Feb. 2011).
[17] See 5 U.S.C. § 3345 (2006).
[18] See id. §§ 3346, 3349a; O’Connell, supra note 3, at 934 (explaining time limits and noting violation of them).
[19] See O’Connell, supra note 3, at 944, 949 (noting that President Reagan maintained vacancies at politically disfavored agencies).
[20] U.S. Const. art. II, § 3.
[21] Buckley v. Valeo, 424 U.S. 1, 126 (1976), available at Findlaw.
[22] Some key White House staff, such as the OMB director and the trade representative, are subject to Senate confirmation.
[23] Matthew J. Dickinson, The Executive Office of the President: The Paradox of Politicization, in The Executive Branch 135, 143–46 (Joel D. Aberbach & Mark A. Peterson eds., 2006).
[24] See Galston & Dionne, supra note 2, at 3 (noting problems created for PAS officers when Presidents use czars).
[25] See id. (noting problems with czars’ limited formal authority).
[26] Christopher L. Eisgruber, Politics and Personalities in the Federal Appointments Process, 10 Wm. & Mary Bill Rts. J. 177, 177–84, 188 (2001) (reviewing Gerhardt, supra note 9).
[27] See id. at 179–80 (explaining virtues of politics in appointments process).
[28] Id. at 180–81 (finding virtue in Bork and Guinier confirmation battles and asserting that “we should welcome the public political contests entailed by the Constitution’s unitary appointments procedure.”).
[29] See Laura E. Little, The ABA’s Role in Prescreening Federal Judicial Candidates, 10 Wm. & Mary Bill Rts. J. 37, 49–50 (2001) (discussing inherency and benefits of conflict in appointments).
[30] Kate Phillips & Jeff Zeleny, Roadblock in the Senate, N.Y. Times, Feb. 6, 2010 (describing incident); Shalaigh Murray, Shelby Releases Holds on Obama Nominees, Wash. Post., Feb. 8, 2010 (describing resolution of incident).
[31] See Gerhardt, supra note 9, at 44 (“The more powerful or high-profile a vacant office, the greater the potential costs to the party responsible for keeping it empty.”); id. at 305 (noting President’s power to move nominations along when he is willing to expend that power).
[32] See id. at 105.
[33] See id. at 137–38; David R. Stras, Understanding the New Politics of Judicial Appointments, 86 Tex. L. Rev. 1033, 1076–77 (2008) (discussing prevalence of logrolling, trading votes on other matters for support for nominations).
[34] See Gerhardt, supra note 9, at 301.
[35] See Eisgruber, supra note 26, at 182–83 (noting low political cost of obstruction, and lack of public attention to them); Brannon P. Denning, The Judicial Confirmation Process and the Blue Slip, 85 Judicature218, 224–25 (2002) (noting deleterious evolution of holds and blue slips to permit more secrecy).
[36] Cf. Gerhardt, supra note 9, at 44 (stating that individual senators “tend to recognize . . . that they must deliberate carefully about whether to obstruct a president’s choices . . . because the odds of failure and the costs of failure to both the institution and individual senators are potentially high.”).
[37] See Carl Hulse, Bipartisan Agreement in Senate Averts a Showdown on Judges, N.Y. Times, May 24, 2005.
[38] See Doug Kendall, Confirmation Warriors, Slate (Oct. 8, 2010) (advocating that President Obama take a less conciliatory approach and force Senate obstructionists to “pay a political cost”).
[39] Galston & Dionne, supra note 2, at 2 (discussing Warren and recess appointments).
[40] See Gerhardt, supra note 9, at 108–09.
[41] See id. at 305–06, 333 (positing benefits of Presidents being more aggressive).
[42] A promising bipartisan proposal is currently advancing in the Senate to remove the requirement of Senate confirmation for hundreds of inferior offices. The payoff: less work for the Senate. See Brian Friel, Senate May Vet Fewer Nominees, Congress.org (Feb. 1, 2011).
[43] See Gerhardt, supra note 9, at 8–9 (“How much a given norm is amenable to change depends on the degree to which presidents and senators can be convinced change is in their mutual interest.”); cf. id. at 270–72 (discussing reforms that President Clinton approved despite their weakening his power).
[44] See id. at 153–56 (discussing abolishing offices and stalling appointments process while that debate proceeds).
[45] Cf. Jason Eric Sharp, Note, Restoring the Constitutional Formula to the Federal Judicial Appointment Process: Taking the Vice Out of “Advice and Consent,” 26 U. Ark. Little Rock L. Rev. 747, 777 (2004) (discussing the 2002 timeline proposed unsuccessfully by President Bush).
[46] See Harold C. Relyea, Cong. Res. Serv., RL98-606, The Executive Office of the President: An Historical Overview 8–11 (2008) (describing growth of White House staff).
[47] See Gerhardt, supra note 9, at 174 (noting congressional use of oversight and appropriations powers to push back against Presidents who overuse acting, recess, and staff appointments).
[48] See Obstacle Course: The Report of the Twentieth Century Fund Task Force on the Presidential Appointment Process 16–17 (1996) (suggesting more pre-election effort); Galston & Dionne, supra note 2, at 10–11 (same).
[49] See Galston & Dionne, supra note 2, at 10 (suggesting truce).
[50] See Light, supra note 8 (proposing federal funding of pre-election transition planning).
[51] For examples of politically-neutral reforms that the White House could make to its personnel process, with tremendous gains in efficiency, see Sullivan, supra note 7.
[52] See Obstacle Course, supra note 48, at 14–16 (suggesting more coordinated staffing of appointments process); Galston & Dionne, supra note 2, at 13–14 (making suggestions for improving vetting process).
[53] See Kendall, supra note 38 (arguing that President Obama’s conciliatory approach to the Senate has failed).