- The Washington Times - Tuesday, June 12, 2001

With the momentous change of party control in the Senate last week, doomsayers fear the combination of a Democratic Senate and a Republican president will bring gridlock at best or trench warfare at worst.
The first test for bipartisan cooperation is the agreement on rules that will govern the Senate, which Democrats will write, but Republicans have the ability to block. Most contentious will be the rules that affect the confirmation of presidential appointments. While there is the potential for deadlock on this issue, the parties could find common ground that serves their long-term interests. To do this, they need to focus not only on the upcoming nomination battles, but also on more fundamental problems with the presidential appointments process.
In the carefully negotiated agreement of last December, the 50-50 Senate had equal numbers of Republicans and Democrats on each committee. Traditionally, a tie vote in a committee on a nomination signals its death. However, under the 50-50 agreement, both Trent Lott and Tom Daschle had the power to move nominations held up by tie votes to consideration by the full Senate. This meant Republicans could ensure a full Senate vote on Bush nominees if they secured the votes of their own senators on the relevant committee. Now that party control has switched, those rules are off. And if the Democrats get a one-seat majority on each committee, which is expected, then any presidential nomination could be killed in committee by a strict party-line vote.
Conflict over nomination and confirmation of presidential appointees stems from the original design of our Constitution, which shared the appointments powers between the legislative and executive branches. Republicans will rightly argue that President Bush should have the right to make appointments consistent with his philosophy. Democrats will rightly argue that the Senate, by virtue of its powers of advice and consent, has the right to approve or reject any nomination. And these arguments are amplified when we have one party in control of the executive branch and another in charge of the Senate.
But in addition to this natural clash between executive and legislative powers, the appointments process has grown into an ugly beast over the last 30 years. We subject our nominees, who often serve in government at great financial and personal loss, to a grueling process, and as a result, we scare away many qualified people from public service.
The most oft-cited statistic about the appointments process comes from the nations leading scholar on the subject, Professor G. Calvin Mackenzie of Colby College. He notes that in 1961, from the time of John F. Kennedys Inauguration, the average time for a nominee to be confirmed was 21/2 months, but under Bill Clinton, that time period had grown to nearly nine months, with each president taking longer than his predecessor. But even this does not tell the full story. Nominees may sit for months with their lives on hold, not knowing whether to move to Washington, resign from current jobs, and find new schools for their kids. And ask nominees about the process, and they will tell you about the intrusive FBI background checks, the disclosure of financial information, and the confusing and overlapping forms they fill out. Worse still are the smear tactics that are sometimes used against nominees of both parties.
So what is to be done, and how will this affect the adoption of new Senate rules? Republicans are demanding that all nominees not languish in committees, but receive a vote on the floor of the Senate. Democrats are unlikely to accede to this demand entirely, as past practice of the Senate has given the committees, which hold the confirmation hearings, a primary role in the appointments process. But Democrats should consider an agreement with the Bush administration on a set number of significant appointments, which they would expedite by guaranteeing committee hearings and votes within a set number of days. The time frame should be shorter for normal presidential appointments (say 30 days for committee votes) and longer for the lifetime appointment judgeships (say 60 days). Republicans should acknowledge this agreement as precedent for future Congresses when Republicans may control the Senate and Democrats the White House.
More importantly, both parties should agree to pass fundamental reforms to the appointments process, such as streamlining the financial disclosure process, simplifying the forms and cutting back the background check process for nominees outside of the national security arena. One such piece of legislation is being developed on a bipartisan basis by Sens. Joseph Lieberman, Connecticut Democrat, and Fred Thompson, Tennessee Republican, in the Government Affairs Committee.
Further, the Bush administration should agree to review its own personnel selection and vetting processes, including scaling back the FBI background checks. Most of these changes will not happen overnight. In fact, reform legislation might specify that major changes will not take place until after the 2004 election, increasing its bipartisan appeal, as neither party can be certain of who will hold the presidency.
In the negotiations over Senate rules, Republicans and Democrats will be driven by partisan concerns, but both parties would do well to consider their longer-term interests in fixing the appointments process and attracting the best people to public service.


John C. Fortier is a research associate at the American Enterprise Institute and manages the AEI-Brookings Transition to Governing Project.

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