Senate in no hurry to confirm Bush nominees

Kristine Svinicki, President Bush's nominee for a Republican slot on the Nuclear Regulatory Commission, is a well-respected aide on the Senate Armed Services Committee. She has worked on energy, environmental, and national security issues for more than 20 years. At her confirmation hearing in July, she won praise from Democrats and Republicans, alike.

Nonetheless, Svinicki remains unconfirmed, a casualty in the subterranean battle that President Bush and Senate Democrats have been waging over executive branch and judicial nominations. A National Journal review found that in the Senate last year, the confirmation rate for Bush nominees was the lowest in his presidency. Just 56 percent of his nominees got the OK in 2007, compared with 66 to 82 percent during each of his first six years. Even in 2002, the only other full year in which Bush faced a Democratic-controlled Senate, 72 percent of his nominees were confirmed.

In fact, only three other years since 1989 have seen lower confirmation rates than 2007 -- 1992, 1996, and 2000, all presidential election years in which the White House faced an opposition Senate. The data suggest that many -- or most -- of Bush's current appointees could dangle throughout the 2008 election year, until the end of his administration.

"The Senate has no incentive whatsoever to confirm his nominees," said Paul Light, a New York University expert on the appointments process. He noted that the executive branch's political ranks will thin in this lame-duck year and remain depleted for another year as the new president gets his or her own team in place. "We're really beginning a period where, from now until the end of 2009, the federal government is a ghost town."

In 2007, a host of Bush's nominees ran into obstacles on Capitol Hill, some very publicly, but many others, such as Svinicki, under the public radar. The two highest-ranking nominees -- Office of Management and Budget Director Jim Nussle and Attorney General Michael Mukasey -- won Senate confirmation only after bruising scrutiny. Democrats, including Sen. Barack Obama of Illinois, a presidential candidate, also pushed hard against Hans von Spakovsky, a nominee for the Federal Election Commission, amid opposition from civil-rights groups. And despite the 2005 "Gang of 14" cease-fire on judicial nominees, Democrats are blocking several nominated judges, contending that the administration did not consider Senate advice.

Lower-profile battles flared over Bush's nominees to fill a variety of positions, such as the members of the National Labor Relations Board. "The Democrats have been fairly firm about not appointing to four-year terms, five-year terms, individuals that we see not reflecting mainstream views or support for the programs they oversee," said Bill Samuel, the AFL-CIO's director of legislation. "We would hope the administration would not be able to fill seats."

During Congress's Thanksgiving and Christmas breaks, Senate Majority Leader Harry Reid, D-Nev., prevented Bush from making recess appointments, which would have slid the president's nominees into the government without a confirmation vote. Reid arranged for a Democrat, typically nearby Sen. Jim Webb of Virginia, to gavel the Senate into session for 30 seconds every couple of days, technically keeping the chamber from recessing long enough for Bush's recess power to kick in.

On November 16, Reid complained that Bush had been nominating only Republicans to bipartisan panels and holding suggested Democratic nominees in abeyance. "While an election year looms, significant progress can still be made on nominations," Reid said on the Senate floor. "I am committed to making that progress if the president will meet me halfway. But that progress can't be made if the president seeks controversial recess appointments and fails to make Democratic appointments to important commissions."

Bush, for his part, ridiculed Reid indirectly on December 3 for the 30-second sessions. "Under the Senate rules, this counts as a full day," the president said during a Rose Garden speech. "If 30 seconds is a full day, no wonder Congress has got a lot of work to do." Still, within the first two weeks of December, Bush quietly sent the Senate several Democratic reappointments that Reid wanted: Gregory Jaczko, a former Reid staffer, at the Nuclear Regulatory Commission; Jonathan Adelstein at the Federal Communications Commission; and Jon Wellinghoff at the Federal Energy Regulatory Commission.

Of course, such wheeling and dealing between the Senate and the White House over nominations is a long-standing tradition. "There's always this kind of tug-of-war," said Michael Gerhardt, a University of North Carolina law professor.

Individual senators, sometimes even from the president's own party, have the power to gain leverage by holding up single nominees or whole slates of nominees. Gerhardt noted that former Sen. Jesse Helms, R-N.C., regularly held up President Reagan's State Department nominees to gain influence over foreign policy. Last year, Sens. Lamar Alexander and Bob Corker, both R-Tenn., delayed nominees to several boards and commissions until the Bush administration agreed to changes affecting a health care program in their state. Sen. Ken Salazar, D-Colo., similarly put a hold on Bush's nominee to head the Bureau of Land Management until the administration backed off plans for oil and gas development in his state.

"There have been a lot more senators who have been doing holds than ever before," Light said. "It's a time-honored tradition that's gotten worse."

Of the 105 nominations that Bush submitted at the start of the 110th Congress on January 9, 2007, the Senate had confirmed only 49 by year's end. The others met various fates. In April, the president gave recess appointments to four of the nominees -- including Susan Dudley as the top OMB regulator and Andrew Biggs as Social Security Administration deputy commissioner -- who had no chance of being confirmed by Democrats.

Bush ultimately withdrew more than a dozen of the nominees. Among that group was Mary Donohue, a former Republican lieutenant governor of New York whose judicial nomination was opposed by Sens. Charles Schumer and Hillary Rodham Clinton, both D-N.Y. And John Rizzo, the nominee for general counsel at the CIA, failed the vetting process at the Senate Select Intelligence Committee under Chairman Jay Rockefeller IV, D-W.Va.

Similar fates met both of the nominees Bush chose to serve as inspector general at the Environmental Protection Agency. Senate Environment and Public Works Committee Chairwoman Barbara Boxer, D-Calif., first shot down Alex Beehler, who withdrew in April, and then Andrew Cochran, who asked to be withdrawn in October after a rough grilling at his confirmation hearing. Boxer and other Democrats questioned the candidates' abilities and independence, while demanding that they launch specific investigations in their home states if confirmed.

Usually, the Senate simply sits on Bush's controversial nominees and allows them to languish, rather than bother with the lengthy process of committee vetting, hearings, and votes. Two judges nominated for the 6th Circuit Court of Appeals have been idling since March because of opposition by Sens. Debbie Stabenow and Carl Levin, both D-Mich.

"We have said since 2001 that we wanted to work with the White House on recommending and giving input on judicial nominations, but they've chosen not to work with us," Stabenow said. She noted that after five years, the Bush administration did start taking advice on District Court nominees from Levin and her, but not on Appeals Court appointments. "It's not even about the individuals," she said. "It's about the process."

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., has complained that the administration is taking too long to submit nominees. For example, Bush announced his intent to nominate Mark Filip as deputy attorney general in November but didn't get the paperwork to the Senate until three weeks later. Leahy said that faster work by the administration could have permitted the Senate to confirm Filip before the end of the year.

Leahy said in December that his committee confirmed more judicial nominees in 2007 than the Republican-led Senate did in any of the three preceding years. But Bush noted in a November 15 speech to the Federalist Society that some of his Circuit Court nominees had gone unconfirmed for more than a year.

Overall in 2007, Bush submitted 490 civilian nominees, and the Senate confirmed 276 of them. Yet many of the disputed nominations have received little public attention. Amy Steigerwalt, a Georgia State University assistant professor of political science who has studied the nomination process, said that the quietness is intentional.

"If you can just stall someone behind the scenes, then it's a lot harder for it to become political fodder for the other side," Steigerwalt said. "It really shows the power of these procedural tactics in the Senate. There's a lot that goes on behind closed doors that's really important, and it's pretty costless to do." The cost will continue to decline as Bush's power subsides while the election draws closer.