WE WILL ADJUDICATE who’s at fault in a moment. We will begin, instead, simply by noting that today, nearly eight months after Inauguration Day, it remains unclear whether the “Bush administration” actually warrants that designation. The president’s Social Security Administration has no commissioner. His Food and Drug Administration and National Institutes of Health have no directors. And his cabinet departments are vacant at the top in dozens of offices that are responsible for much of the daily work of our government. Throughout the executive branch, fewer than half the senior-most “political” positions have so far been filled. Those Republicans who’ve bothered to note the problem blame Democrats for the glacial pace of presidential appointments. In several particulars, the complaint is just. Two cabinet-level posts still languish empty, despite the fact that President Bush months ago formally nominated an excellent man to serve in each of them. Neither has been granted a confirmation hearing by Senate Democrats. United Nations ambassador-designate John D. Negroponte is matchlessly qualified for the job. Over the course of a 37-year foreign service career, he ran three overseas embassies and an entire State Department bureau, and did two tours of duty on the National Security Council. But he also, during the 1980s, supported the Nicaraguan “contra” insurgents then fighting to topple their country’s Marxist regime. So Negroponte has been made to wait almost six months for a confirmation hearing by Senators Chris Dodd of Connecticut and John Kerry of Massachusetts, both of whom furiously opposed the contra war. Loath to acknowledge that they have decapitated America’s U.N. delegation out of ancient pique over a Reagan foreign policy, Dodd and Kerry would have us believe, instead, that the delay involves allegations that Negroponte covered up local human rights abuses while he was ambassador to Honduras from 1981 to 1985. Except that no one has produced a fly-speck of credible evidence for those allegations. Not even a whisper of impropriety has been advanced against John P. Walters, President Bush’s similarly outstanding choice to lead the White House Office of National Drug Control Policy. Here, the should-be cabinet officer’s nomination is being resisted, more or less explicitly, on ideological grounds alone. We say “more or less explicitly” because the discomfort some Senate Democrats appear to have with Walters takes a peculiar, ironic twist. As this page has previously reported (“John Walters and His Critics,” May 21, 2001), a vocal handful of marijuana enthusiasts and other proponents of the right to self-stupefaction do not like the drug czar-designate. They do not like him because he has not endorsed their call to legalize possession of recreational psychoactive chemicals. So they have mischaracterized existing laws and Walters’s record in order to tar him as a lock-’em-up zealot hostile to medical services for drug addicts. And they have persuaded certain people who ought to know better—the editors of the New York Times, for example—to adopt and amplify this smear. No doubt your average Senate Democrat prefers to imagine himself the Times editorial page made flesh, and no doubt, therefore, your average Senate Democrat imagines that he’s supposed to oppose John Walters. Trouble is, your average Senate Democrat has been supplied impossible grounds on which to do so: The “draconian” laws and “meager” drug-treatment budgets Walters gets blamed for are laws and budgets they themselves have enacted and reenacted year after year. Rather than make asses of themselves by rejecting a nominee because he agrees with them too much, Senate Democrats have chosen to . . . do nothing about Walters—and not explain why. THEN THERE’S THE CASE of Eugene Scalia, like Walters a friend or former colleague of several WEEKLY STANDARD editors, and the president’s pick to be the Labor Department’s chief lawyer. Scalia has his famous father’s last name, which probably persuades prejudiced partisans that he’s just another doctrinaire policy warrior. Which is unfair to the father and even less fair to the son. For more than a decade, Gene Scalia has made a quiet career for himself as a perfectly mainstream labor lawyer, representing defendant employers. He is universally liked and admired by attorneys who have litigated against him. Consequently, an impressive number of those attorneys have endorsed his nomination: William Robinson, current chair of the College of Labor and Employment Lawyers, for one, and Ted St. Antoine, a former senior AFL-CIO attorney and dean of the University of Michigan Law School, for another. But. Communicants in the church of “ergonomic science” still boil with rage at Scalia for publishing devastating criticism of the hotly debated ergonomic “safety” regulations promulgated in the waning days of the Clinton administration. Largely on the basis of a single (baldly misrepresented) line from one of Scalia’s essays, these ergonauts have dubbed him “the Labor Department’s James Watt” and “the Oliver North of employee safety.” And word in the newspapers is that Senator Hillary Clinton plans to join this assault—that she “wants Scalia’s scalp” for helping to persuade Congress, earlier this year, to revoke her husband’s questionable, eleventh-hour regulatory adventure. That’s just it, though: Both houses of Congress did vote to invalidate the ergonomics rules. Were Mrs. Clinton to succeed in scalping Gene Scalia, in other words, it would mean the Senate had decided to reject an executive branch nominee for his alleged unwillingness to enforce federal regulations that do not exist—the Senate itself having killed them. No close observer of Congress doubts that Scalia will eventually be allowed to assume his post at Labor; his opponents’ stated rationale is frivolous and unsustainable. And their genuine motivation, that Scalia is not the man a Democratic president would have chosen, is unworthy of the implied respect it has been accorded by the Senate’s refusal to schedule his confirmation hearing. Ordinary policy disagreements are never a sufficient basis for the Senate to deny a president the subordinates he prefers. Executive appointees do not serve for life in an independent branch of government, as federal judges do. They are temporary public officials delegated temporary administrative power by the man who temporarily occupies the Oval Office. And the “ideology” these officials temporarily advance is the president’s by design. The Founders fully expected that every president would surround himself with like-minded aides. In each case, Hamilton explained in Federalist 76, “the person ultimately appointed must be the object of his preference.” The Senate’s “advice and consent” authority over presidential personnel was intended only as a de minimis check against the appointment of abjectly “unfit characters,” and Hamilton thought it “not very probable”—or desirable—that executive branch nominations “would often be overruled.” For one thing, Federalist 76 predicted, senators would be reluctant to cast any such “reflection upon the judgment of the chief magistrate.” By their partisan resistance to the Negroponte, Walters, and Scalia nominations—and to a handful of others—Senate Democrats have worked to prove Mr. Hamilton naive. Here’s the thing, though. There’s little reason to conclude that its treatment of this limited list of “controversial” individuals is generally characteristic of the Democratic Senate’s response to Bush administration appointees. On the whole, evidence is scarce that ideological obstinacy in the Senate is principally to blame for the staffing gaps that litter the executive branch. Political scientists who study the confirmation process actually give this year’s Senate—and the Bush White House, too—high marks for diligence and cooperation, at least by historical standards. Despite an abbreviated transition, George W. Bush has managed to make mor
e executive nominations than had Bill Clinton at a similar point in his first year. And the Senate, now politically hostile to the president, as was not the case in 1993, has nevertheless approved a greater number of presidential appointees. It turns out the government’s senior ranks are not so empty as they’ve previously been. But they are pretty empty, just the same. Why? If “partisanship” is not the true culprit, what is? THERE ARE PLENTY OF SOBER, unbiased analysts inclined to think it’s “the system,” the accretion of legally mandated personnel procedures, each originally well-intentioned, that now make life so hideously difficult for any man tapped for a job with the president. Paul Light, who runs a project on presidential appointment politics at the Brookings Institution, cites the “ludicrously detailed financial disclosures” such a would-be civil servant must make. And the equally time-consuming and notoriously intrusive “Form SF86” the victim must also fill out, this one demanding that he reveal every address he’s ever used and the circumstances of almost every past word or deed that might conceivably trouble his conscience. Then there’s the fact that the FBI uses all these private details to conduct a “full-field” background investigation of the prospective nominee: knocking on his neighbors’ doors, questioning his old girlfriends, and so forth. And the additional fact that the FBI must subject an ever growing number of people to just this level of painstaking scrutiny: 500 executive branch positions are now governed by these rules, so 500 such inquisitions must be completed before each new administration is fully staffed up. Mr. Light of Brookings proposes that the entire process be sweepingly reformed and streamlined. And his proposal surely has great merit—on humanitarian grounds alone. But we doubt it will fix the larger problem that here concerns us. That every prospective presidential appointee must begin a slow walk through hell the moment the White House settles on his name does not explain why President Bush hasn’t yet got even that far—hasn’t so much as announced a candidate—for nearly 30 percent of those 500 senior jobs he needs to fill. Nor does “the system” explain why the Senate has dithered over so many candidates who’ve already completed its rigors. At last count, 282 final, FBI-approved Bush nominations have reached Capitol Hill this year. And 20 percent of those haven’t so far won even preliminary Senate consideration. If they cared to, both ends of Pennsylvania Avenue could speed things up a lot. That they seem not to care enough, and that so few people in Washington are vigorously complaining about it, betrays an unsettling erosion of respect among the country’s political leaders for the mechanisms of government they are charged to keep oiled and functioning. “The institution of delegated power,” Hamilton wrote of the presidential appointment power, “implies that there is a portion of virtue and honor among mankind, which may be a reasonable foundation of confidence.” The “institution” does indeed imply that. But it falls to our working politicians to make the implication reality.
