The US Constitution, which turned 225 years old last summer, is a remarkable document: the provisions of a text written in the 18th century continue to guide 21st-century governance. We will be reminded of the implications of that in the coming weeks, as President Barack Obama fills senior positions in his second-term administration. In many cases, the process will not be pretty.
Article II of the Constitution stipulates presidential powers that require the ‘advice and consent of the Senate’, including the nomination of senior officials. Probably nobody, 225 years ago, had any idea that the number of officials deemed to require Senate confirmation would eventually exceed 1,400, or that Senate confirmation would involve a vetting process that often takes years to complete.
Indeed, many people believe that the Senate confirmation process is broken. They have only to point to the failed attempt to nominate Susan Rice, the US ambassador to the United Nations, to be Hillary Clinton’s successor as secretary of state, or to the similarly gut-wrenching nomination of former Senator Chuck Hagel to be secretary of defence.
Because of the sheer volume of nominations, most have traditionally sailed through the Senate with so-called unanimous consent, a process by which nominations are placed on the day’s calendar and the calendar is approved in a single voice vote. But that expedited process is becoming rarer nowadays.
A senator may place a ‘hold’ on a nomination for any reason, including personal animus towards the nominee, or, more often, to gain something in exchange. And, increasingly, nominations have become a kind of public circus, attracting all kinds of players to the ring: non-governmental organisations, pundits, local politicians, and virtually anyone with an opinion and a way to express it.
These types of spectacles used to be reserved for the nomination of Supreme Court justices — a lifetime appointment to a nine-member body that can overturn laws passed by Congress and signed by the president. But those full-throttle battles have now spilled over to other nominations. As a result, an individual’s agreement to serve the president for two or three years has become a life-altering — and mind-numbing — experience.
Today, any nominee to a position requiring Senate confirmation can expect to spend many hours listing past places of residence, attaching tax returns, detailing family members’ campaign contributions, and answering questions about the employment of domestic help or gardening services and whether such employees were legal, tax-paying US residents.
The vetting process will even go back to one’s teenage years — all to ensure that anything that the Senate’s own investigators can find is known before the nomination is formally submitted.
During my career, the Senate confirmed me five times. Each time, the vetting essentially started from scratch. In addition to the countless forms, lengthy questionnaires, and background investigations, there was an interview with a paralegal whose job was to ferret out any information that might conceivably bear on the nomination.
These interviews included such cheerfully delivered questions as, “Have you ever been arrested for growing marijuana?” Or, more directly: “Do you take drugs?” Or, probing further into past activities or behaviour, “Have you ever been arrested for public drunkenness?” (“I cannot recall” is probably not a good reply.)
In the past, a nomination was officially announced before the nominee moved on to the next phase and met with senators to discuss the appointment. Now, as the process has become more fraught, the Obama administration has introduced a still further preliminary stage in which the nominee engages in a sort of do-it-yourself consultation with senators, after which the administration gauges the reaction and decides whether or not to go through with the nomination.
In the case of Rice, the answer was no. In the case of Hagel, the administration decided to proceed.
Once the nomination goes to the Senate, the real fun begins. Some senators issue press announcements: “A fine candidate…” or “I have concerns....” In the latter case, the nominee, already beginning to wonder whether the job is worth the aggravation, meets with the senator to clear up “misunderstandings”. Unfortunately, there may not be any misunderstanding; the senator is simply angry at the administration about something, or dislikes the nominee for something supposedly said or done previously.
In the meantime, various NGOs, sometimes working with hostile senate staff, will be parsing the public record to find some utterance by the nominee — context is often irrelevant — that suggests bad judgment or values. When I was nominated to be US ambassador in Iraq, a newspaper article was dug up to insinuate that I had compared North Korea’s human-rights record favourably to that of the US — clear proof that I must be a North Korean sympathiser or a lunatic. (What I had actually said, to a reporter at a reception, was that all countries need to work on their human-rights record, “even the United States, but North Korea’s is arguably the worst in the world”.)
Allies of the nominee are recruited and pressed into service. Doubting senators can be subjected to telephone campaigns by the nominee’s supporters (often to counter similar campaigns from the nominee’s opponents), and even to threats from Senate leaders.
Sometimes, opponents of a nominee merely want to make a point, or to cultivate donors (an activity that can seep into any issue in Washington). When the point is made — or the fundraising goals are achieved — the nominee gets the happy phone call: “It’s done. The nomination will go through this afternoon. We’ll call you when the vote takes place. Congratulations!”
At that point, the nominee hangs up and says: “What was I thinking?”
— Project Syndicate, 2013
Christopher R. Hill, former US assistant secretary of state for East Asia, is dean of the Korbel School of International Studies, University of Denver.