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How a Flaw in the Nominations Process Risks National Security

Introduced to expedite Senate confirmations for uncontroversial positions, the “privileged nomination” process instead prolongs vacancies.
August 10, 2022
How a Flaw in the Nominations Process Risks National Security
USMC Commandant Gen. David Berger addresses the media during a press conference at Camp Pendleton in Oceanside, CA on Friday, July 31, 2020. (Photo by Paul Bersebach/MediaNews Group/Orange County Register via Getty Images)

In November 2019, after hearing the newly appointed commandant of the U.S. Marine Corps, Gen. David Berger, give a talk about his plan to transform the force and prepare it for the new challenges America faces, I asked him how he intended to move forward with no one in the role of under secretary for readiness and personnel and a number of other positions related to the plan. At the time, acting personnel had been running many important Pentagon offices for months, in some cases for more than a year—and their confirmed successors would again leave within months once Joe Biden was inaugurated, leaving their offices empty yet again, likely for more months or years. Berger acknowledged that the vacancies presented a serious challenge to the implementation of his plan.

Berger is not alone in feeling the strain caused by unfilled positions in government agencies: As a new report published by the nonpartisan Center for Presidential Transition shows, the problem has gotten worse over the past decade thanks to a mechanism originally introduced to help accelerate the appointment process for about 280 “noncontroversial” positions subject to confirmation by the Senate: privileged nominations. Instead of helping these nominees move quickly into their roles, the “privileged” calendar has resulted in new delays across the board—and the resulting vacancies have led to serious consequences for the affected agencies.

The problem has been acute for both the most recent administrations. Instability and chaos caused by resignations and firings compounded an already laggard appointment process for the Trump administration, but the Biden administration’s pace of appointments has hardly been better. Currently, positions as senior as principal deputy under secretaries and assistant secretaries remain vacant: Either the Senate has not confirmed the nominee, or Biden hasn’t named one.

In theory, the privileged nominations comprise positions that the Senate can confirm in a voice vote without much delay: They are non-political roles that support the everyday functioning of government agencies, and many of them are part-time. Yet on average, “the Senate has approved roughly 240 [out of 282] of these nominees, each taking an average of 251 days to confirm.” By contrast, during the decade before the privileged schedule for these nominees was introduced, “the average was 171 days.” As time passes, it is taking longer for the Senate to confirm fewer “privileged” nominees, which reflects a larger trend of lengthening confirmation timelines “for all nominees during successive presidencies.”

Positions that fall in the “privileged nomination” category span departments and agencies; they include logistical back-of-house roles such as comptrollers for the Army, the Navy, and the Air Force and less prominent offices such as that of the CFO of the Department of Agriculture. While the privileged nomination slowdown is a problem for all departments, it is especially a national security vulnerability.

Covering these vacancies out of necessity, acting personnel are forced to split their time between their full-time jobs and the roles awaiting appointees. As Commandant Berger pointed out in his response to my question, they are also too often unqualified for their stopgap roles. And appointees who are confirmed late have to learn their complicated roles in a short amount of time; they often leave in the course of the transition to the next administration just as they begin to feel comfortable in the job.

The Center for Presidential Transition report identifies three causes for the confirmation delays for privileged nominees: growing numbers of Senate-confirmed positions overall, part-time positions receiving lower priority, and the growing politicization of the Senate confirmation process.

That last cause results in some of the most frivolous holdups for privileged and regular nominations alike. Senator Tim Kaine kept a procedural hold on the Senate’s confirmation process for David Schenker, Donald Trump’s nominee for assistant secretary of state for Near Eastern affairs, for over a year to protest the president’s decision to launch airstrikes against Syria without seeking congressional approval. In return, Republicans have refused to confirm Sarah Margon and Tamara Cofman Wittes, Biden’s nominees for positions at the State Department and the U.S. Agency for International Development, despite bipartisan support for both.

The growth of government bureaucracy is another problem. Every new president is expected to make more than 4,000 political appointments, and around 1,200 of these are Senate-confirmable. Recruiting for these positions takes an enormous amount of time and effort, to which must be added the process of Senate hearings and vetting. Further, this complex sequence of recruiting, vetting, and confirmation for such a large number of roles is one that can be obstructed or suspended if other exigencies arise, as has happened to several recent administrations. It is no wonder that it took more than a year for the Biden administration to fill many positions as senior as under secretaries and assistant secretaries of state and defense—some of which still remain empty.

While the problem of confirmation delays has gotten significantly worse over the past decade, it is a longstanding problem. Recalling the beginning of the George W. Bush administration in January 2001, retired general Jack Keane observed:

So Secretary [Donald] Rumsfeld shows up literally the day after the inauguration and he meets the Chairman of the Joint Chiefs on the steps, General Hugh Shelton. But his other appointees don’t show up for months because they can’t get—they have to be vetted by the White House, approved by the Congress, they have to get a security clearance or there’s no sense of even walking into the building because you can’t go to a single meeting without a top-secret clearance.

So Secretary Rumsfeld is there with no staff except some holdovers from the previous administration, who we kept in place just to kind of keep things working. It was awful to see that system take place. It really ill serves the country that we don’t have a better process than that. You can transition something like the Pentagon, and not have his entire staff together.

Now imagine if 9/11 had taken place in March of 2001 instead, with a holdover skeleton crew covering vacancies in the Department of Defense and other agencies and departments responsible for responding to the attack.

But we don’t even need this hypothetical to take full stock of the issue. There is a recent crisis compounded by government understaffing and inexperienced new appointees: the withdrawal from Afghanistan.

With confirmation timelines trending longer with each year, resulting in fewer confirmations overall, each new administration faces a longer period of vulnerability—months when the partisans from the prior administration have gone, and national security agencies are unstaffed. The return of great power hostilities makes this situation particularly fraught.

The category of de facto political appointees is also growing, adding still another dimension to the confirmation timeline problem. The latest example of partisan scope creep? The growth of political ambassadors. Career foreign service officers typically go through a smooth confirmation process, and they virtually always retain their jobs amid transitions between administrations. But key ambassadorial positions have been going to partisans in recent years, creating churn, further holdups, and vacancies: At the time of the withdrawal from Afghanistan, the United States didn’t have ambassadors to key regional and allied countries, from the United Kingdom and France to Saudi Arabia and the United Arab Emirates. If a Republican president enters the White House in 2025 and China foments a crisis over Taiwan, the U.S. will not have ambassadors to any Quad country, NATO, the European Union, the United Kingdom, or France—all key to the American Indo-Pacific strategy.

The Center for Presidential Transition report includes recommendations for addressing the privileged nominees problem that could mitigate some of these risks, including some recommendations that it first brought forward in a report published last year. These include calls to reduce the overall number of political appointees that require Senate confirmation, prioritize career civil servants—as well as foreign service officers and perhaps even military officers, I must add—for more positions, and expand the scope of the “holdover norm” that keeps capable officeholders appointed by a previous administration in some roles, such as U.S. marshals.

It is past time for these recommendations to be implemented—and not just for the privileged nominees, but other positions, too. Many positions that require a political appointee by law don’t need one in practice; they require competence and technical expertise to be performed well, not big policy ideas subject to ideology. The Office of Net Assessment in the Pentagon is an example of success in an office unaffected by the appointments churn brought on between administrations: Andrew Marshall held the role of director for more than four decades with utmost distinction, creating continuity and stability benefiting most secretaries of defense regardless of their partisan affiliations and their ideologies. His only successor so far, James Baker, has held the office since 2015. That continuity of leadership has supported the larger goals of this indisputably important office, not undermined them or compromised them with ideology. It is worth asking whether acquisition and military technology policy would benefit from similar continuity, which could be brought about by removing roles in those areas from the requirement of Senate confirmation.

The Biden administration has been in power for almost twenty months. The Partnership for Public Service and the Washington Post continue to track 808 of the administration’s 1,200 confirmable political appointments, and they report that 138 roles are at some stage in the Senate confirmation process, with some having been there since January. Meanwhile, more than 80 offices remain without a nominee at all, including 15 in the state department and key roles in the Departments of Defense and Homeland Security and other agencies. These continuing vacancies are an obstacle to the administration’s initiatives and the execution of the laws Congress has written; they undermine the interests of both branches. We can blame the administration, and we can blame this Congress; both deserve it. But beyond anyone’s specific culpability, there is a more foundational problem: a broken process in desperate need of fixing.

Shay Khatiri

Shay Khatiri studied Strategic Studies at the Johns Hopkins University School of Advanced International Studies. He’s an immigrant from Iran and writes the Substack newsletter The Russia-Iran File.