Will Presidential Nomination ‘Hostage-Taking’ Lead to Confirmation Reforms?

BY Chris Amico  January 4, 2011 at 12:00 PM EDT

Source: New York Times Congress API

You might not remember Erroll Southers. He is a former FBI agent and counter-terrorism expert, and he was President Obama’s first nominee to head the Transportation Security Administration. He was still a nominee when the Washington Post wrote this on Dec. 29, 2009:

An alleged attempt to blow up a transatlantic flight from Amsterdam to Detroit on Christmas would be all-consuming for the administrator of the Transportation Security Administration — if there were one.

Instead, the post remains vacant because Sen. Jim DeMint, R-S.C., has held up President Obama’s nominee in an effort to prevent TSA workers from joining a labor union.

DeMint, in a statement, said Umar Farouk Abdulmutallab’s alleged attempted attack in Detroit “is a perfect example of why the Obama administration should not unionize the TSA.”

Southers eventually withdrew his nomination. So did President Obama’s second nominee for the same job, Maj. Gen. Robert A. Harding, a retired Army intelligence officer who pulled out over questions about connections to a defense contractor.

There is a growing consensus in Washington that the presidential appointment process is nearing a breaking point.

“Without any formal Constitutional change, the very structure of the American government is being altered,” E.J. Dionne and William A. Galston wrote in a paper for the Brookings Institution that called for reform. “A confirmation process designed to safeguard Congress’ prerogatives has, in important ways, undermined them.”

The Obama administration managed to get about 77 percent of its nominees confirmed by the Senate, compared to about 72 percent of President George W. Bush’s first-term nominees. But President Obama has also nominated 259 fewer people to fill Senate-confirmable positions than Bush did in his first term.

Norm Ornstein, a congressional scholar at the American Enterprise Institute, says the nomination process is getting worse with every administration. He blames an increase in both the number of positions needing confirmation and heightened polarization in the Senate.

“Now you have a widespread hostage-taking phenomenon,” Ornstein said. If you want to get the attention of the administration, you just look at all those people awaiting nomination and pluck out a few hostages.”

In February, Sen. Richard Shelby, R-Ala., put a blanket hold on all nominees. Politico reported at the time:

Shelby is frustrated over the Pentagon’s bidding process for air-to-air refueling tankers, which could lead to the creation of jobs in Mobile, Ala. And spokesman Jonathan Graffeo said in a statement the senator is also “deeply concerned” that the administration “will not release” funds already appropriated for a Terrorist Explosive Device Analytical Center to be built in Alabama.

“If this administration were as worried about hunting down terrorists as it is about the confirmation of low-level political nominations, America would be a safer place,” Graffeo said.

But nomination holdups are not always a casualty of partisan warfare. Sometimes a member of the president’s own party is willing to stall a key nomination to make a point.

Democratic Louisiana Sen. Mary Landrieu placed a hold on the nomination of Jack Lew, President Obama’s nominee to head to White House budget office, as a protest against the administration’s moratorium on deep-water drilling after the Deepwater Horizon disaster.

“I figured it would get their attention and I think it has,” Landrieu told Politico when Lew was confirmed in November.

In 2005, Republicans almost did away with at least some filibusters. With judicial nominations piling up, then-Senate Majority Leader Bill Frist called for eliminating senators’ ability to hold up votes on court appointees. Now in the opposition, Republicans have made the filibuster routine.

“Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes,” Chief Justice John Roberts wrote in his annual report on the judiciary.

Onstein would like to see three things change:

  • An across-the-board reduction in the number of positions requiring Senate confirmation
  • A rethinking of the FBI screening process, with more sensitive positions like TSA director getting more thorough background checks and others getting less
  • Filibuster reform, though no one is certain if or in what form that might happen

There are signs of movement on reforms. In December, every returning Democratic senator signed a letter to Majority Leader Harry Reid calling for filibuster reform, The National Journal reported.

“We may be near a point where we can do something about it,” Ornstein said. “The only time you can do something about it is when you’re approaching a presidential election and both sides think they have a reasonable chance of winning.”

One last interesting fact: In the past decade, no nominee who has gotten a vote in the Senate has been rejected. You can see a list of every nomination vote here.