Bench Memos

Law & the Courts

Massive Delays in Senate Confirmation of Executive-Branch Nominees

Last week I happened to be at a conference with Charles D. Stimson on the anniversary of his still-pending nomination to be general counsel of the Navy. The Senate received Stimson’s nomination on June 6, 2017. The Armed Services Committee held a hearing on his nomination five weeks later and reported the nomination favorably, by voice vote, on July 20 to the full Senate, where it languished, for no apparent reason, through the rest of 2017. Senate Democrats forced the return of most pending nominations, including Stimson’s, to the White House at the beginning of this year, so Stimson was renominated on January 8, 2018. His nomination is back on the Senate floor, still awaiting action.

Spurred by Stimson’s example, I had hoped to do a quick post on the extraordinary delays that many executive-branch nominees are facing. But my task has been complicated by the fact that there appears not to be any publicly available website that provides a simple table of pending executive-branch nominations, with name, position, date of nomination, etc.

(By the way, the Federal Judicial Center Administrative Office of the United States Courts has useful tables of current and declared future judicial vacancies, along with nominations to those vacancies. Be aware, though, that most of the judicial nominations that were pending at year-end were returned to the White House, thus leading to 21 renominations at the beginning of this year. The FJC AO tables list the date of the renominations, so they can’t be relied on to calculate the total time a nominee has been waiting.)

The best (but only so-so) resource I’ve been able to locate for executive-branch nominees is the Washington Post’s database of nominations for “667 key positions.” That database, alas, doesn’t generate tables and instead has required me to compile information from it. The fact that it confuses appointments with nominations (the first action for each nominee is misidentified as “Appointment Announced”) also makes me suspicious of how reliable it is. That said, I’ve relied on it for purposes of this post.

Of the 134 pending nominations listed in the database, a full 52 involve individuals first nominated to their positions in 2017. Of these 52, twelve were nominated in June 2017 or earlier, and all but seven were nominated before the end of October (more than seven months ago). If there are serious controversies over more than a very small number of these nominees, they’ve escaped my attention.

As with the very long delays on district-court confirmations, the primary cause of these long delays on executive-branch nominations is, of course, the Senate Democrats’ insistence on cloture votes even on uncontroversial nominees. After Harry Reid’s abolition of the filibuster (60-vote threshold for cloture) for executive-branch and lower-court nominees in November 2013, only a simple-majority vote is needed for cloture. But the mechanics of cloture—filing of a cloture motion, vote on the motion two days later, and up to 30 floor hours of post-cloture debate—can eat up scarce Senate floor time and disrupt ordinary Senate operations.

I don’t claim to have an encyclopedic recall of delays of nominees from previous Administrations, and I’m not aware of any databases that would allow an easy comparison, but I’d be very surprised if any other Administration has experienced remotely comparable delays in getting such a large number of important sub-Cabinet positions filled.

I will note that a chart in the Post’s database states that the “average time to confirm” for Trump nominees is 87 days, compared to 67 for Obama nominees—a significant, but not enormous, difference of 20 days. But unless I’m badly misunderstanding it, that statistic is for nominees who have been confirmed, and thus excludes the pending nominees who have been the subject of greatest delay. [Update (6/15): I have confirmed that my understanding is correct.] By my rough calculations, if all the pending nominees from 2017 were suddenly confirmed today, the “average time to confirm” for Trump nominees would jump to the range of 105 to 110 days.

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