Our tottering confirmation process

Public Interest, Spring, 2002 by Paul C. Light

THE presidential appointments process was designed to maintain a delicate balance between recruiting talented citizens to service and preventing corruption. "There is nothing I am so anxious about as good nominations," Thomas Jefferson wrote at the start of his presidency in 1801, "conscious that the merit as well as reputation of an administration depends as much on that as on its measures." On the other hand, the Founders understood that some citizens might be drawn to governmental service for personal gain. Benjamin Franklin was so worried about protecting what he called the "posts of honor" from self-interest that he urged the Constitutional Convention to prohibit the executive officers of government from receiving any "salary, stipend, Fee or reward whatsoever for their service."

The Founders dismissed Franklin's proposal without a word of debate, but they did check the president's appointment power by giving the Senate the power to advise and consent, albeit by a simple majority, not the two-thirds vote required for approval of treaties. As a counter-check, the Founders provided the president with the authority to make recess appointments, suggesting that they were as concerned about filling vacancies as preventing flawed nominations.

This delicate balance between promoting merit and preventing corruption has held throughout American history, but the appointments process itself has come under increasing strain as the layers of government have grown thicker and the procedure for confirmation more complex. Today's invasive and time-consuming confirmation process has produced long delays in staffing, continual administrative vacancies, efforts to circumvent Congressional confirmation, and a reluctance on the part of many talented citizens to serve in the national government. As the administrative bureaucracy has expanded, the effort to ensure merit (or, considered less charitably, to avoid scandal) by scrutinizing each and every nominee has dealt serious harm to the effective functioning of government.

Layers of government

George Washington set the precedent for high-quality presidential appointments early in his administration with the selection of Thomas Jefferson as secretary of state and Alexander Hamilton as secretary of the treasury. Most presidents have followed his lead by seeking distinguished public figures for the top executive jobs. Washington also began the thickening of government that more than 200 years later has produced a political hierarchy of staggering proportions. He named the first department secretaries and postmaster general, and appointed the first assistant postmaster general in 1789 and the second just two years later. Washington and his successor, John Adams, were both astute arbiters of patronage for their Federalist Party, prompting Jefferson to ask in 1801, "If a due participation of office is a matter of right, how are vacancies to be obtained? Those by death are few; by resignation, none."

Jefferson resisted the temptation to exploit the system for his own purposes by adding new layers of appointees, however. Indeed, it was almost 50 years later, during the presidency of Zachary Taylor, before the next assistant-secretary position was created in an executive department. From then on, the expansion of the political hierarchy accelerated. In the 1850s and 1860s, the first assistant-secretary positions were created at the Departments of State, Justice, War and Navy, and Interior, and the number of new positions continued to grow throughout the late nineteenth century. In 1909, the first under secretary was appointed at the State Department, establishing a new layer that soon appeared in the Treasury and Agriculture Departments.

In 1935, Franklin Delano Roosevelt selected 51 Senate-confirmed appointees, and there is no evidence that he made any "exempt" appointments--those not requiring Senate confirmation. The federal government's leadership corps consisted of 10 secretaries, 3 under secretaries, and 38 assistant secretaries, But the number of positions grew sharply after World War II. Inspired by his military experience, Dwight Eisenhower added an entirely new class of presidential appointee: the Schedule C "personal and confidential assistant," a category of non-Senate confirmed lower-level appointee that now contains roughly 1,500 slots.

A quarter century later, Congress passed the Civil Service Reform Act of 1978, which created a new high-level Senior Executive Service that now consists of about 7,000 positions, up to 10 percent of which can be appointed by the president. George W. Bush inherited an even grander presidential hierarchy on January 20, 2001. Not only had the Senate-confirmed bureaucracy grown to roughly 500 cabinet and subcabinet posts, including 14 secretaries, 23 deputy secretaries, 41 under secretaries, and 212 assistant secretaries, Bush also had the opportunity to appoint 2,000 or so non-Senate-confirmed political aides.

Presidents seem to have embraced the notion that more leaders equals more leadership. Every president since Eisenhower has added titles and layers to the political hierarchy. So has every Congress, which retains the constitutional authority to create Senate-confirmed positions through statute. Until 1909, assistant secretary was the second most important job in executive departments. Today, it is usually 15 to 20 layers down, buried below Senate-confirmed deputy secretaries and under secretaries, and non-Senate-confirmed "alter ego" deputies of one kind or another. The Clinton administration added as many new political positions in its eight years in office as the Kennedy, Johnson, Nixon, Ford, Carter, Reagan, and Bush administrations had added in the previous 32 years. Among the Clinton administration's innovations are the soon-to-be-classic deputy to the deputy secretary, principal assistant deputy under secretary, and associate principal deputy assistant secretary.