• Allon Advocacy

Staff Shortage

Former President Donald Trump presides over a meeting of his cabinet in 2018. The Constitution gives the Commander in Chief wide latitude to select his team, but the Senate's "Advice and Consent" has increasingly delayed the process.

As fans of The West Wing, Veep, Madame Secretary, or even Designated Survivor are well aware, every U.S. president gets to appoint individuals to fill around 1,200 Senate-confirmed jobs at executive branch agencies like the Treasury and Justice Departments. Presidents also fill about 2,800 other positions that do not require Senate confirmation. These individuals work to implement the president’s agenda. Quite literally in this instance, personnel is policy.

The president needs these loyal staff in place across the massive federal bureaucracy to deliver on his campaign promises and keep the wheels of government moving.

As we reported just one week after President Joe Biden’s inauguration in January, the Senate was taking more time than usual to approve the senior-most members of the president’s appointees: his cabinet. And the White House was just getting started on the second-, third-, and fourth-tier positions that needed to be filled at the various federal agencies.

How are things going now? Does President Biden have a robust roster of supporters helping him implement policy throughout the government?

Before we look at that, a quick reminder about the Senate confirmation process.

The Senate’s Role in Confirmations

Article II, Section II of the U.S. Constitution says the president “by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States.” Traditionally, this “advice and consent” has been a mere formality. Since the First Congress, only 11 cabinet nominees have been rejected by the full Senate or not reported out by the Senate committee overseeing the nomination. (Relevant committees must vote on nominations before the full Senate does.) A significantly larger number of nominees have withdrawn their names before a vote, however, when it became clear they did not have sufficient support to win confirmation.

This impressive record came despite the fact that, for most of the country’s history, Senate rules allowed the opposing party (or anyone for that matter) to filibuster a nominee. Until 2013, when former Senate Majority Leader Harry Reid (D-Nev.) lowered the threshold for nominee approval, three-fifths of senators — 60 in total — needed to agree to a nomination in order for it to ultimately be approved.

Since 2013, the approval of only a simple majority of senators has been needed to approve executive branch nominations. With the president’s party in control of the upper chamber of Congress today, that threshold should be a breeze to achieve … right?

Think again.

President Biden’s Nominees Are Moving Slowly

According to the employment website ClearanceJobs, the amount of time it has taken for the Senate to approve presidential executive branch nominations has increased over the last few decades. President Ronald Reagan’s nominees took an average of just 56 days to get through the Senate confirmation process. That number more than doubled to 117 days under former President Donald Trump.

President Biden is on pace to see that figure increase even further. Indeed, according to the White House Transition Project, the average administration since the Reagan era “has filled about 60 percent more government positions as the Biden team” at this point in each administration’s first term.

At this point in his presidency, just 115 of former President Donald Trump’s nominees had secured Senate confirmation. President Biden is doing slightly better than his predecessor with 127 nominations complete, but that number is far less than half of the number of nominees that former President Barack Obama (293) and former President George W. Bush (283) had earned approval for at this point.

The Senate is partly to blame for the lack of progress. The chamber currently is in the process of reviewing or approving 206 nominations sent to it by the White House, including the nomination of Rohit Chopra to lead the Consumer Financial Protection Bureau.

Individual senators have the power to put “holds” on nominees. This ability has stalled progress on some nominations. As The Hill has explained, for example, Sen. Elizabeth Warren (D-Mass.) only recently dropped her hold on an Education Department nominee. Sen. Warren had “sought assurances that the administration would reform student loan programs.” Sen. Ted Cruz (R-Texas), meanwhile, has “blocked the quick confirmation of dozens of State Department nominees” because he wanted to “force the Biden administration to impose congressionally mandated sanctions on the Nord Stream 2 pipeline from Russia to Germany.”

According to the Los Angeles Times, as many as 65 nominations were impacted by Sen. Cruz’s holds.

The White House also shoulders some of the responsibility, however. Specifically, there are still 229 senior positions available throughout the government for which the White House has not yet even announced a nominee. (The Comptroller of the Currency, which leads the OCC, is one such example.)

Another position for which the White House has yet to make an announcement is a very important one: the director of the Office of Management and Budget (OMB). OMB works with federal agencies to write the president’s annual budget and it also oversees the process for writing all executive branch regulations.

As the Partnership for Public Service explained, the White House withdrew the nomination of Neera Tanden to be OMB director in early March since she “faced bipartisan opposition from senators because of past comments she made on Twitter.” The president has not yet nominated anyone in place of Tanden.

While all of the president’s cabinet-level nominees have been confirmed, as Government Executive explained late last month, other key jobs “remained unfilled, including the head of the Food and Drug Administration, the solicitor general at the Justice Department, a seat on the Federal Reserve Board of Governors, the comptroller of the currency, the assistant attorney general for antitrust, and the chair of the Commodity Futures Trading Commission.”

The president also has not yet nominated people to fill several key ambassadorships. The Senate has confirmed only one ambassador: former Interior Secretary Ken Salazar as U.S. ambassador to Mexico. Ambassador Eric Rubin, president of the American Foreign Service Association, the union for the diplomatic corps, told National Public Radio, “There’s no other country in the world, I think, probably that has ever had 80 vacant ambassadorships at one time … And while I'm quite sure it's not intended to be a signal of disrespect or lack of commitment to engagement with other countries, it can come across that way after a point.”

An Administration That Looks Like America

One area where the Biden administration clearly is ahead of its predecessors is gender diversity.

According to Brookings Institution scholars, “[T]he Biden administration has demonstrated a strong and steady commitment to appointing women and nonwhites to the highest positions in government.” In fact, President Biden already has appointed more women to Senate-confirmed positions than former President Trump had after a full 300 days in office.

In all, about 60 percent of Senate-confirmed Biden appointees are women. That’s about double the percentage for former President Obama and triple that of former Presidents Bush and Trump. More than half of President Biden’s White House staff are women as are 36 percent of the people on his National Security Council.

When it comes to race and ethnicity, Brookings says comparison data is incomplete. According to the Joint Center for Political and Economic Studies, “Of announced nominees, African Americans make up 16 percent of Assistant Secretary nominations and 13 percent of Under Secretary nominations.”

Making an Imprint on Antitrust Policy

According to The Christian Science Monitor, another place where the Biden administration has made a clear imprint is at consumer- and financial services-related industries.

Lina Khan, “a wunderkind of antitrust law who rose to prominence as a Yale law student with a 2017 article that called for placing a check on Amazon’s dominance,” is now head of the Federal Trade Commission (FTC), for example. With the Department of Justice, the FTC enforces current antitrust rules.

Khan is just one of many “proponents of increasing and expanding antitrust regulation and enforcement” who have made it into the administration, The Monitor said. While his position did not require Senate confirmation, Tim Wu, who sits on the White House’s National Economic Council as a special assistant to the president for technology and competition policy, has been “a driving force in shaping” the administration’s antitrust policy.

Slow Pace Likely to Continue

The Senate is now in recess, but has a packed schedule when it returns in September. Democratic leaders are hoping to finish up work on the $1.2 trillion infrastructure bill and to write the $3.5 trillion budget reconciliation package. Lawmakers also will need to reauthorize several vital programs, like the National Flood Insurance Program (NFIP). Authorization for NFIP expires on Sept. 30, right in the middle of hurricane season.

Controversial nominations also will take up a lot of air. CNN reported that the nomination of David Chipman to lead the Bureau of Alcohol, Tobacco, Firearms and Explosives “is nearing collapse” because of Democratic opposition. It also is unclear when the full Senate will vote on Chopra’s nomination to lead the CFPB. Accordingly, it seems likely that the Senate won’t have much time to turn its attention to the President’s nominees when it returns from its August recess.

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