As Clock Winds Down, Agencies Await Fate of Obama’s Nominees

Sometimes, long waits and uncertainty for presidential appointees have consequences.

Tom Burke, appointed to the Environmental Protection Agency, was forced to relinquish his deanship at Johns Hopkins University. Beth Robinson, nominated to the Energy Department, gave up altogether, deciding her more than one year of waiting was more than she was willing to spend bearishly anticipating congressional action. 

There are currently more than 150 nominations pending on the Senate’s Executive Calendar -- with dozens more stuck in committee -- and few legislative days remaining in the 113th Congress to confirm them. As the Senate debates and negotiates what to do with Cabinet-level appointees, such as President Obama’s Attorney General nominee Loretta Lynch, and high-profile federal judge vacancies, federal agencies are anxiously awaiting what the lame duck Congress will do with more under-the-radar, but operationally critical, candidates.

Republicans’ overwhelming victory of the midterm elections will put the party in charge of the Senate in January, and the White House, Congress and various factions of each party are debating what to do with the outstanding nominees. Should Senate Democrats rush to confirm as many Obama allies as possible before they relinquish as many as nine seats next year? Or, in an olive branch of cooperation and bipartisanship, should the Senate restart the process next year with Republicans in charge?

Of the nominees stuck in limbo, about 40 percent are awaiting either federal judge or ambassadorship confirmations. Many more are low-impact appointees to federal boards, commissions, funds and foundations. The rest -- several dozen -- would fill executive branch positions such as general counsel, program director and assistant secretary.

Brad Crowell, the Energy Department’s assistant secretary for congressional and intergovernmental affairs, told Government Executive he is “optimistic” Congress will move to confirm the agency’s seven pending nominees this year.  The department has more vacancies than any major federal agency, including one undersecretary.

Crowell said the openings do not affect day-to-day operations, as Energy has “the people and system in place” to carry out its critical mission functions.

“In terms of long-term policy and implementing the director’s vision, it hurts not to have them,” he said. For now, Energy is relying on non-Senate confirmed political appointees to “keep the office running.”

A Senate Democratic aide told Government Executive at least some of the factions currently at odds will need to come together in order for the Senate to act.

“We’re discussing a path forward on nominations,” the aide said, “but we’ll need cooperation.”

A White House official told Government Executive the situation was “urgent.”

“There are only a few weeks left for the Senate to act to confirm several hundred talented and committed Americans who are willing to enter public service, but unfortunately have had to wait, sometimes for hundreds of days, to get to work,” the official said. “There is an urgent need to confirm these nominees awaiting confirmation.”

If the Senate fails to act in the waning days of the current session of Congress, Obama’s nominees will not only face a less friendly majority and its chosen committee chairs, but all of them would have to be resubmitted by the White House. Logistically, that would mean an influx of new paperwork, as well as a second or third committee hearing.

“That starts to factor in whether a nominee wants to be pending in this process,” Crowell said. Energy’s nominees, which Crowell described as in “purgatory,” have been pending for an average of 302 days.

The Education Department has five unconfirmed appointees, all of whom have been confirmed by the Health, Education, Labor and Pensions Committee without objection. Dorie Nolt, an agency spokeswoman, said Education has similarly been able to “work in a high quality way,” despite the vacancies.

“Nevertheless,” she said, “it is challenging to run the agency without a number of key staff responsible for providing guidance and support to the secretary being in place.” She added the department encourages Congress to confirm the nominees -- who have been waiting an average of 287 days -- before adjourning, “so that we can most effectively work together with Democrats and Republicans in Congress on behalf of our nation’s students.”

EPA also has five nominees awaiting confirmation, including the aforementioned Burke. An agency spokeswoman said Burke’s “qualifications for the job are not in dispute.”

So why is the Senate holding up candidates that neither Democrats nor Republicans batted an eye at in committee? The answer, of course, is simply politics.

Last November, Senate Democrats voted to remove the filibuster option for executive branch nominees and federal judges not appointed to the Supreme Court, meaning they only needed a simple majority for confirmation. Senators can still place a “hold” on a nominee, which gums up the works by disallowing quick unanimous consent votes. While the new threshold has enabled Senate Majority Leader Harry Reid, D-Nev., to move on many nominees, it has also led to political fallout with federal agencies as the primary victim.

“It’s nothing more than [the politics] that caused the delay,” Crowell said.   

In the meantime, employees at agencies across government are pinch hitting.

“It adds to an already stressful and full workload,” Crowell said. “But that’s why people sign up.”