Current Issue

  • Volume 64,
  • Number 8 -
  • May 2015


Back to the Future on Presidential Appointments
Paul C. Light

This issue of the Duke Law Journal takes readers back in time to the constitutional origins of today’s sluggish presidential appointments process, into the present with sharp analysis of recent cases and data on how the process is working, and forward into a more hopeful future of potential innovations that might restore some balance to what appears to be an entirely dysfunctional appointments process. This collection of articles brings fresh insights, data, and even a bit of optimism to resolving the tension between the Senate’s advice-and-consent power and the President’s obligation to take care that the laws are faithfully executed.


Transcending Formalism and Functionalism in Separation-of-Powers Analysis: Reframing the Appointments Power After Noel Canning
Ronald J. Krotoszynski, Jr.

Contemporary separation-of-powers theory and practice generally rely on two competing theories—formalism and functionalism—to frame and decide contested questions about the scope of each branch’s constitutional power and authority. In some areas, this dichotomy works reasonably well and possesses significant explanatory force. But the dichotomy’s utility is considerably less obvious in the context of the federal appointments process.

The Supreme Court’s recent decision in National Labor Relations Board v. Noel Canning crisply demonstrates the limitations of formalism and functionalism in resolving separation-of-powers questions that equally implicate text, structure, and historical practice. Moreover, Justice Breyer’s Noel Canning opinion deftly transcends the formalism–functionalism dichotomy even while relying on textual, structural, historical, and practical arguments drawn from both modes of separation-of-powers analysis. Noel Canning teaches that constitutional text, by itself, will not always yield clear or reliable answers to difficult separation-of-powers questions. The decision also highlights a serious shortcoming in formalist legal analysis: When the Constitution expressly vests conflicting powers in different branches—as in the context of staffing the executive branch—purely formalist analysis will not suffice. Simply put, the Framers not only separated powers; they also blended them. In many important areas, the constitutional text does not clearly specify where one branch’s authority ends and another’s begins.

A workable account of the federal appointments process requires careful consideration of structure and practice, of original intent and appointments conventions developed over time, and of the conflicting textual imperatives of the Senate’s advice-and-consent power and of the unitary executive (understood in light of the President’s Article II “take care” duty). In order to develop an effective separation-of-powers jurisprudence, the federal courts must transcend the formalism–functionalism dichotomy in this important area of separation-of-powers theory and practice. More broadly, the shortcomings of the formalism–functionalism dichotomy in the context of appointments suggest the need to rethink the dichotomy more broadly as well.

The Uncertain Effects of Senate Confirmation Delays in the Agencies
Nina A. Mendelson

As Professor Anne O’Connell has effectively documented, the delay in Senate confirmations has resulted in many vacant offices in the most senior levels of agencies, with potentially harmful consequences to agency implementation of statutory programs. This symposium contribution considers some of those consequences, as well as whether confirmation delays could conceivably have benefits for agencies. I note that confirmation delays are focused in the middle layer of political appointments—at the assistant secretary level, rather than at the cabinet head—so that formal functions and political oversight are unlikely to be halted altogether. Further, regulatory policy making and even agenda setting can depend more critically on the work of career civil servants than on the political leadership of an assistant secretary, further reducing the cost of midlevel vacancies. The Article then suggests that confirmation delays can have positive effects, although the list is short. Senior civil servants, serving as acting officials, can offer valuable expertise on regulatory decisions, and their expertise with respect to core implementation and enforcement issues may exceed that of more generalist political appointees. Additionally, confirmation delays may prompt both increased leadership by longtime civil servants and reduced turnover in their ranks, with benefits to overall agency function. On the other hand, confirmation delays surely cause significant problems by reducing resources to agencies and increasing turnover in management. Missing confirmed appointees also may contribute to slower White House regulatory review. More research is needed, but at a minimum, thinking about confirmation delays presents another opportunity to reflect on whether we should thin the layer of political management in agencies and on the relative importance, to administrative agency legitimacy and function, of specific expertise, compared with political accountability.

Appointments, Innovation, and the Judicial–Political Divide
Gillian E. Metzger

The federal appointments process is having its proverbial day in the sun. The appointment and removal of federal officers figured centrally in the Supreme Court’s two major recent separation-of-powers decisions, Free Enterprise Fund v. Public Company Accounting Oversight Board and National Labor Relations Board v. Noel Canning. The appointments process has featured even more prominently in the political sphere, figuring in a number of congressional–presidential confrontations. Such simultaneous top billing in the judicial and political spheres is hardly coincidental. After all, it was President Obama’s use of the Recess Appointments Clause in response to pro forma sessions that triggered the Court’s engagement with the Clause in Noel Canning. But the relationship between the Clause’s judicial and political manifestations is more complicated, and more fraught, than mere practical causality. The Roberts Court’s approach to appointments and separation of powers issues stands out for its Burkean resistance to innovation. By contrast, the dominant characteristic of appointments in the political sphere is novelty and embrace of new institutional arrangements.

This Article explores these differing judicial and political approaches to innovation, and the implications of the emerging contrast for federal administration. Although the Court’s resistance to innovation might appear a useful prophylactic against efforts to bend the Constitution in the name of political expediency, the constitutional basis for such a general suspicion of innovation is lacking. Particularly given the political transformations occurring in response to polarization, a stance of suspicion sets the Court on a course of confrontation with the other two branches that is hard to justify. A more nuanced approach that pays greater attention to political reality would allow the Court to both better titrate its interventions to constitutional structure and minimize the disruptive effects of its decisions.

Shortening Agency and Judicial Vacancies Through Filibuster Reform? An Examination of Confirmation Rates and Delays from 1981 to 2014
Anne Joseph O’Connell

This Article explores the failure of nominations and the delay in confirmation of successful nominations across recent administrations, with a focus on the November 2013 change to the Senate voting rules. Using a new database of all nonroutine civilian nominations from January 1981 to December 2014, there are several key findings. First, approximately one-quarter of submitted nominations between 1981 and 2014 were not confirmed, with a higher failure rate for the last two Presidents. Nominations to courts of appeals and independent regulatory commissions had much higher failure rates than other entities. Second, for confirmed nominations, the time to confirmation has been increasing. President Obama’s nominees faced confirmation delays that were more than twice as long as President Reagan’s choices. Failure rates of nominations did not always go hand-in-hand with confirmation delays for successful nominations. Although more nominations failed in divided government, confirmation delays were roughly equal when different parties controlled the Senate and the White House. Third, comparing the year after the change to the filibuster rules to the preceding year, confirmation times for the courts decreased but increased for all types of agencies. For many agencies and agency positions, however, significantly fewer nominations failed after the voting change. Even so, these improvements in 2014—to the confirmation rates for both agency and judicial nominees and to the confirmation pace for judicial picks—are relative: for the average nomination, the failure rate was higher and the confirmation process was slower than under preceding administrations. Fourth, nearly 30 percent of nominees hailed from the District of Columbia, Maryland, and Virginia, raising concerns that the confirmation process may be narrowing the pool of top officials. This Article suggests some possible explanations for the findings and further avenues of investigation, and also proposes some reforms.

“Advice and Consent” in Historical Perspective
Russell L. Weaver

In recent years, commentators have complained about what they regard as an increasingly dysfunctional confirmation process for judges and high-ranking executive officials, and the proper role for the Senate in the confirmation process has been much debated. This Article suggests that confirmations have been contentious throughout American history, and that the focus on ideological issues in today’s confirmation proceedings is not anomalous. Indeed, historically, both Republicans and Democrats have used the confirmation process to delay or oppose nominations when the President hails from a different political party, and, sometimes, even when the President comes from the same party but there are ideological objections to the nominee.

That the appointments process has, at times, been difficult and contentious should come as no great surprise. The Framers of the United States Constitution intentionally created a governmental structure that was more prone to obstructionism than other comparable systems. Relying on concepts like “separation of powers,” and “checks and balances,” the Framers sought to constrain the federal government in ways that would limit the possibilities for governmental abuse. The appointments power reflects this approach. Like many other constitutional powers, it is a shared power. Although the President has the power to nominate Article III judges, as well as ambassadors and “officers,” nominees can only be confirmed with the “advice and consent” of the Senate. By placing the power to appoint in two politically elected entities, the Constitution establishes a system whereby political influences will sometimes have a major impact on the confirmation process.

Although contentiousness can arise during any type of nomination, some Supreme Court nominations have been particularly bitter. Both the Senate and the American public have increasingly become aware that the courts make law and that the political and judicial attitudes of nominees matter. Under such circumstances, the Senate’s inquiry quite naturally goes beyond the simple question of whether a nominee is qualified or unqualified. However, the confirmation process is more difficult today, even for nonjudicial nominees, because of the bitter partisanship that has infected the U.S. political system.