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Ryan M. Scoville, Unqualified Ambassadors, 69 Duke L.J. 71 (2019).

Administrative law commentary often fixates on the White House—specifically, on presidential directives to agencies. Presidents, however, often wield more control by picking agency leaders, as David Barron smartly pointed out over a decade ago. In the years since, while legal scholars have paid considerable attention to judicial picks, they have largely neglected agency appointees. Ryan Scoville’s Unqualified Ambassadors provides a deeply needed look at the people selected to lead our embassies abroad. Recently, we have seen how confirmed ambassadors can take on critical roles beyond their embassies: President Trump named the confirmed ambassador to Germany, Richard Grenell, acting Director of National Intelligence last month.

Scoville compiled (and has made freely available online) an astounding amount of information on close to 2000 ambassadorial nominees to sovereign countries from 1980 to 2018. These ambassadors serve both as diplomats and as CEOs of U.S. efforts in a particular country. Despite considerable presidential control in this area, Scoville argues that these leaders “remain as vital contributors to a successful foreign policy.” He obtained some information from the Obama Administration, which, starting in 2014, publicly provided “certificates of demonstrated competency” for each ambassadorial nominee. (Congress then codified the practice.) For the remaining 34 years of data, Scoville turned to FOIA requests. He is the rare scholar who has sued to get needed information for his article.

From this trove of certificates and the Congressional Record, Scoville tracked campaign contributions and developed a range of qualification measures (language ability, experience in the country and region, foreign policy expertise from federal government jobs or the military, and leadership skills) for these bilateral ambassadorships. Among many interesting findings, he determined:

  • In his first two years, more than 40 percent of President Trump’s appointees came from outside the Foreign Service. Despite congressional pressure in recent decades for more skilled diplomats, President Trump has appointed more political nominees than each of the other modern presidents (for example, President Obama allotted 30 percent of his appointments to non-career diplomats).
  • Political ambassadors were more than fourteen times more likely than career picks to have contributed campaign funds to their nominating president.
  • While more than a quarter of all political nominees provided no such campaign contributions, about 11 percent of nominees between 2001 and 2016 bundled funds for their nominating president.
  • Donors filled plum assignments in “politically stable and economically developed countries,” mainly in Western Europe.
  • Language ability is in short supply, particularly outside Western Europe, South America, and Africa. Considering non-English speaking countries, only 46 percent of career picks (and just 28 percent of political picks) had some relevant language ability.
  • Within-country experience is also largely lacking, with just 17 percent of all nominees having experience in or involving the assigned country. While in-country experience is low among career nominees (19 percent), it is worse among political picks (12 percent).
  • Regional expertise was much better, however—with 61 percent of all picks having prior regional experience in or involving the relevant region. Here, careerists far outperformed their political counterparts, 86 to 24 percent.
  • From the qualification metrics developed in the article, All but 10 percent had some organizational leadership skills (96 percent of career nominees versus 76 percent of political nominees, where law firm partnerships did not count).

Drawing on the State Department Inspector General’s (IG) reports and other sources, Scoville worries about the “plausible consequences” of more campaign contributors and less skilled ambassadors—including “the United States … encounter[ing] greater difficulty executing foreign relations” and “the marginalization of diplomacy itself.”

To stave off these effects, Scoville proposes several reforms. First, he wants Congress to impose some statutory qualifications for these critical posts. Scoville proposes mandates on language skills and other relevant experience, and a restriction on campaign donors. Unlike many Senate-confirmed jobs with “reasonable and relevant” qualification mandates, the Constitution includes explicit references to ambassadors, raising tricky constitutional questions as to whether statutory mandates are compatible with the Appointments Clause, which the article deftly examines. Of course, donor restrictions raise their own concerns even if imposed, as Scoville suggests, on diplomatic passports or salaries and not on the President’s choices themselves.

Second, Scoville calls for the Senate to change its rules to impose a longer waiting period and to require hearings for ambassador nominations to foreign states. Finally, he demands more transparency. Specifically, he wants the certificates of demonstrated competency to contain more relevant information (and to be disclosed with nominees’ financial forms in one place) and for the State Department’s IG to conduct and publicize regular reviews of these foreign posts.

Interestingly, disconcerting political realities of the appointments process may generate desirable effects in this area. Specifically, the delays in nominating (and confirming) ambassadors should produce more qualified embassy leaders as interim heads typically come from the career foreign service. Comparing acting officials and confirmed leaders raises complex questions, but we may be less worried here.

Ambassadors are just one part of the administrative state. I hope future research will take up the qualifications of other appointees to complement Scoville’s important insights.

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Cite as: Anne Joseph O'Connell, The Surface State, JOTWELL (March 10, 2020) (reviewing Ryan M. Scoville, Unqualified Ambassadors, 69 Duke L.J. 71 (2019)), https://adlaw.jotwell.com/the-surface-state/.