On The Apprentice, Donald Trump famously enjoyed firing people. And now in the White House, President Trump attracts great attention with even the suggestion that he might fire a senior member of his administration. Less well noted, though, is that the president has more hiring to do—especially when it comes to appointing senior leadership to many federal agencies, a task that requires both the president’s nomination and the Senate’s constitutional “advice and consent.” As of December, nearly half of his agencies’ senior leadership positions are unfilled. The Partnership for Public Service reports that of the 704 “key positions requiring Senate confirmation,” only 380 have been filled with Senate-confirmed appointees. As for the 324 vacant offices, the president has not even announced a nominee for 128 of them.
This trend arose early in Trump’s term. In August 2017, the Washington Post reported that the president’s 279 nominations in his first 29 weeks fell well behind the pace of Presidents Clinton (345), Bush (414), and Obama (433). But recent months have witnessed a further complication: as the president’s initial agency leaders leave office, he tends to fill the vacancies not by promptly nominating replacements, pending Senate confirmation, but by designating others to fill the roles on an “acting” basis. When Scott Pruitt resigned as head of the Environmental Protection Agency in July 2018, for example, Trump picked Pruitt’s deputy, Andrew Wheeler, to be the agency’s acting head, but waited until November before even announcing a new nominee for official appointment to the office. The nominee was Wheeler himself; the Senate has not yet confirmed him.
Similarly, when Richard Cordray resigned as director of the Consumer Financial Protection Bureau in November 2017, Trump designated the White House’s director of the Office of Management and Budget, Mick Mulvaney, to be the acting CFPB director, and waited nearly seven months to nominate a formal successor, Kathy Kraninger; it took another six months for the Senate to confirm her. And most recently, when Attorney General Jeff Sessions resigned after the midterm elections after many months on the hot seat, Trump designated Sessions’s former chief of staff, Matthew Whitaker, to be the acting attorney general—though, in this case, he acted comparatively quickly to fill the vacancy, nominating William Barr for the office after a month.
Under the Federal Vacancies Reform Act and other laws, the president has the authority to designate acting agency heads to serve at least for a limited period until successors can be nominated. But when temporary leaders, lacking the president’s formal appointment and the Senate’s formal approval, take charge of agencies, they risk losing credibility—among their peers in the administration in which they work, or before the Congress that oversees them, or within the agency itself. As Politico’s Eliana Johnson and Burgess Everett observed in December, “the result is an administration in a holding pattern.”
Trump is aware of the problem; yet while he often criticizes the Senate for failing to confirm his nominees quickly enough, he sometimes also suggests that vacancies are a feature, not a bug. When Fox News’s Laura Ingraham observed in November 2017 that the State Department’s leadership had many openings, the president responded that “we don’t need all of the people . . . it’s called cost saving.” Contrary to the maxim that “personnel is policy,” he maintained that “the one that matters is me. I’m the only one that matters because, when it comes to it, that’s what the policy is going to be.”
Senate Republicans haven’t prioritized executive-branch appointments, either. The floor time required for each nomination is the Senate’s scarcest resource, and it is being dedicated first to the nominations of federal judges, who effectively enjoy life tenure. “Priority between an assistant secretary of state and a conservative court judge—it’s not a hard choice to make,” Senate Majority Leader Mitch McConnell said in 2017.
The calculus is understandable, but it comes at a cost. The Framers gave the Senate a major constitutional role in the appointment of officers precisely to promote excellence and stability in government. As Alexander Hamilton observed in Federalist 76, “the necessity of [Senators’] concurrence [in appointments] would have a powerful . . . operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters.” And, he added, “it would be an efficacious source of stability in the administration.”
The Senate should continue to confirm good judicial nominees, given the long-term benefits of staffing the courts with principled constitutionalists. Still, governance requires not just attention to the long-term quality of the courts but also to the short-term caliber of public administration. If the Senate would give presidential appointments more priority, perhaps the president himself would respond in kind.
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