The Constitution gives the president the power to pick his own team, but must seek the “advice and consent” of the Senate. Back in 1776, that meant a handful of posts: top jobs, like the Supreme Court judges and the Secretary of State.
Today, more than 1,400 civilian appointments require Senate confirmation. Some, like federal judgeships, are important lifetime appointments. But others are temporary roles that do not involve policy. Today, so many posts require the Senate's consent that, if each one were to be given a full hearing, debate, and vote, it would take more than a thousand work days to get through them all — more work days than there are in a presidential term.
Up until now, the Senate has worked on a tacit agreement to push uncontroversial appointments through quickly, while saving the time-consuming battles for contentious nominees. But in recent years, that agreement has broken down. Increasingly, senators have been using their role of "advice and consent" to delay and refuse, not just controversial nominees, but everyone. Republicans are trying to run out the clock on Obama's term.
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This is abuse of power. Nominees, the vast majority of whom have put other professional responsibilities on hold to serve their country, deserve consideration. Now that the Senate is set to change hands, leaders should agree to hold up-or-down votes as soon as possible on these nominees.
But the Senate should go a step further, and remove hundreds of positions from the list of those that need confirmation. Some progress has been made, with the passage of the Presidential Appointment Efficiency and Streamlining Act of 2011, which removed 169 low-level civilian appointments from the confirmation process. But that bill did not go far enough. Senate confirmation is still required for part-time positions like the Saint Lawrence Seaway Development Corporation Advisory Board and the trustees of the Morris K. Udall Scholarship and Excellence in National Environmental Policy Foundation. It strains the imagination to come up with any scenario under which those deliberations would constitute a good use of 100 senators' time.
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Another change that should be made is the removal of anonymous holds. A long-standing tradition in the Senate is that anyone can place an anonymous hold on any nomination, blocking that nominee from receiving an up-or-down vote for any reason — or for no reason at all. In 2010, Senator Richard Shelby, an Alabama Republican, placed anonymous holds on more than 70 of President Obama's nominees, in an attempt to blackmail the administration into giving defense contracts to his state. The attempt was scuttled after his colleagues went public. But this misuse of power represents yet another shocking abuse of the Senate's "advice and consent" responsibilities. Anonymous holds should be banned. If a senator feels strongly enough to block an item, he or she should have the decency to take a public stand.
When Democrats were faced with near-universal obstructionism on their nominees, they changed the Senate rules to avoid filibusters and get more quickly to an up-or-down vote. Thanks to the so-called "nuclear option," it only takes 51 senators to confirm a presidential nominee, with the exception of Supreme Court nominees, which still require 60. Now that the Democrats are back in the minority, they may be tempted to try to go back to the old rules. To do so would be hypocritical. Presidential nominees deserve consideration, and the public deserves a government that is able to break through gridlock.