I thought I had a good general understanding of the confirmation process until I read Professor O’Connell‘s enlightening study. Some of the findings were about what I expected. Thus, for instance, both the rate at which nominees fail to be confirmed and the time required for confirmation have increased significantly between 1981 and 2014. The failure rate was 26.4% in the George W. Bush Administration and 28.0% in the Obama Administration, compared with an average failure rate of 4.4% to 10% during the period 1885 to 2008. The average confirmation time was 127.1 days in the Obama Administration, compared with an average confirmation time of 88.5 days over the 33-year period of the study. The results of the high rate of failure and the lengthening delays are disconcerting. At any point in time, between 15% and 25% of senior agency positions are vacant.
As I would have predicted, the failure rate was four times higher in the last year of an Administration than in the first year of an Administration. Also as predicted, the 2013 reduction in the number of Senate votes required to enable an up or down vote on a judicial nominee from 60 to 50, at a time when the President’s party had a majority in the Senate, reduced both the number of failed nominations for judgeships and the average time until a nominee for a judgeship was confirmed.
Many of Professor O’Connell’s findings differed significantly from my expectations, however.
Thus, for instance, even after the 2013 change in the filibuster rules, the confirmation process was considerably slower than in the prior periods in which it took sixty votes to end debate. Moreover, the average to time required to confirm a nominee to an agency position actually increased after the change in the filibuster rule.
I was also surprised by the apparently minor role that partisan politics plays in the confirmation process. 26% of nominees fail to be confirmed when the White House and the Senate were controlled by different parties, but almost as many–21%–failed when the White House and the Senate were controlled by the same party. Similarly, the average time to confirmation was only four days longer when the White House and the Senate were controlled by different parties than when both were controlled by the same party.
One of Professor O’Connell’s findings is of particular interest to those of us who are members of the faculty of a law school in the Washington metropolitan area. Nearly 30% of nominees to agency positions live in the D.C. metropolitan area at the time of their nomination. Professor O’Connell links this phenomenon to the marked increase in the time required for confirmation. Many people are reluctant to be nominated when they expect to have to travel to and from the D.C. area many times over a several month period. Of course, the time required to be nominated has also increased significantly, so a prospective nominee from California or Florida can expect to spend almost a year flying to and from meetings with the White House and members of the Senate. That finding helps to explain why my law school has received many applications for faculty positions from chaired professors at schools outside the area in recent years. Whether or not we hire the applicant, he is usually nominated for an agency position within a year of his application to join our faculty.
Professor O’Connell’s study has scores of more detailed findings that raise many questions that should attract the attention of scholars. Thus, for instance, why are nominees to be members of Commissions or Boards rejected by the Senate five times as often as nominees for cabinet positions? This paper fulfills both of the goals of good scholarship: It answers many important questions, but it raises far more questions that legal scholars and political scientists need to explore. I would urge anyone who is interested in public law and the political process to put it on her “must read” list.