Both Republicans and Democrats have contended that because federal judges have life tenure, and don’t work for the president, it is legitimate for the Senate to give careful scrutiny to judicial nominees. Fair enough (though even for selection of judges, the line should be maintained between scrutiny and recalcitrance).
For executive branch officials, the assessment must be different. Those officials work for the president. Within broad limits, the president, whether Republican or Democratic, is entitled to select his own staff. So long as the president’s choices meet basic standards of character and competence, the Senate should be reluctant to stall or stop them — much less to use the confirmation process to extort presidential favors or changes in policy.
The Senate should take three steps to remedy the situation.
First, it should reduce the intensity of its scrutiny. To that end, Democrats and Republicans should agree to adopt a strong presumption (rebuttable, but strong) in favor of confirming executive branch nominees.
Second, the Senate should amend its rules to forbid a single senator, or a small group, from placing a hold on a nominee to an executive branch position.
Third, the Senate should ensure that every executive branch nominee is given a prompt up-or-down vote, probably within two months of the nomination date (with an exception for extraordinary cases involving genuinely serious issues that require longer periods).
Starting from scratch, no sane person could propose the current confirmation process, which is a parody of the constitutional design. The problem, of course, is that when the president is a Republican, Democratic senators have no short- term incentive to fix it. The same is true for Republican senators when the president is a Democrat. Sometimes it’s hard to solve long-term problems, and sometimes it’s really easy. With respect to the confirmation process, we need a sensible, not-so-grand bargain, and we need it now.
Cass R. Sunstein, the Felix Frankfurter professor of law at Harvard University, is a Bloomberg View columnist. He is the former administrator of the White House Office of Information and Regulatory Affairs, the co-author of “Nudge” and the author of “Simpler: The Future of Government,” to be published in 2013.