Organizing to Govern

TRANSITION AND APPOINTMENTS

In the immediate aftermath of the election, the incoming and outgoing administrations work together to help facilitate the transfer of power. While the General Services Administration oversees the logistics of the process, such as office assignments, information technology, and the assignment of keys, prudent candidates typically prepare for a possible victory by appointing members of a transition team during the lead-up to the general election. The success of the team’s actions becomes apparent on inauguration day, when the transition of power takes place in what is often a seamless fashion, with people evacuating their offices (and the White House) for their successors.

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Read about presidential transitions as well as explore other topics related to the transfer of power at the White House Transition Project website.

Among the president-elect’s more important tasks is the selection of a cabinet. George Washington’s cabinet was made up of only four people, the attorney general and the secretaries of the Departments of War, State, and the Treasury. Currently, however, there are fifteen members of the cabinet, including the Secretaries of Labor, Agriculture, Education, and others (Figure). The most important members—the heads of the Departments of Defense, Justice, State, and the Treasury (echoing Washington’s original cabinet)—receive the most attention from the president, the Congress, and the media. These four departments have been referred to as the inner cabinet, while the others are called the outer cabinet. When selecting a cabinet, presidents consider ability, expertise, influence, and reputation. More recently, presidents have also tried to balance political and demographic representation (gender, race, religion, and other considerations) to produce a cabinet that is capable as well as descriptively representative, meaning that those in the cabinet look like the U.S. population (see the chapter on bureaucracy and the term “representative bureaucracy”). A recent president who explicitly stated this as his goal was Bill Clinton, who talked about an “E.G.G. strategy” for senior-level appointments, where the E stands for ethnicity, G for gender, and the second G for geography.

A photo of cabinet members holding a meeting in the Cabinet Room.
The Cabinet Room, shown here during a cabinet meeting on January 31, 2012, adjoins the Oval Office in the West Wing of the White House.

Once the new president has been inaugurated and can officially nominate people to fill cabinet positions, the Senate confirms or rejects these nominations. At times, though rarely, cabinet nominations have failed to be confirmed or have even been withdrawn because of questions raised about the past behavior of the nominee.Glen S. Krutz, Richard Fleisher, and Jon R. Bond. 1998. “From Abe Fortas to Zoe Baird.” American Political Science Review 92, No. 4: 871–882. Prominent examples of such withdrawals were Senator John Tower for defense secretary (George H. W. Bush) and Zoe Baird for attorney general (Bill Clinton): Senator Tower’s indiscretions involving alcohol and womanizing led to concerns about his fitness to head the military and his rejection by the Senate,Michael Oreskes. 1989. “Senate Rejects Tower, 53–47; First Cabinet Veto since ‘59; Bush Confers on New Choice,” New York Times, 10 March 1989, http://www.nytimes.com/1989/03/10/us/senate-rejects-tower-53-47-first-cabinet-veto-since-59-bush-confers-new-choice.html. whereas Zoe Baird faced controversy and withdrew her nomination when it was revealed, through what the press dubbed “Nannygate,” that house staff of hers were undocumented workers. However, these cases are rare exceptions to the rule, which is to give approval to the nominees that the president wishes to have in the cabinet. Other possible candidates for cabinet posts may decline to be considered for a number of reasons, from the reduction in pay that can accompany entrance into public life to unwillingness to be subjected to the vetting process that accompanies a nomination.

Also subject to Senate approval are a number of non-cabinet subordinate administrators in the various departments of the executive branch, as well as the administrative heads of several agencies and commissions. These include the heads of the Internal Revenue Service, the Central Intelligence Agency, the Office of Management and Budget, the Federal Reserve, the Social Security Administration, the Environmental Protection Agency, the National Labor Relations Board, and the Equal Employment Opportunity Commission. The Office of Management and Budget (OMB) is the president’s own budget department. In addition to preparing the executive budget proposal and overseeing budgetary implementation during the federal fiscal year, the OMB oversees the actions of the executive bureaucracy.

Not all the non-cabinet positions are open at the beginning of an administration, but presidents move quickly to install their preferred choices in most roles when given the opportunity. Finally, new presidents usually take the opportunity to nominate new ambassadors, whose appointments are subject to Senate confirmation. New presidents make thousands of new appointments in their first two years in office. All the senior cabinet agency positions and nominees for all positions in the Executive Office of the President are made as presidents enter office or when positions become vacant during their presidency. Federal judges serve for life. Therefore, vacancies for the federal courts and the U.S. Supreme Court occur gradually as judges retire.

Throughout much of the history of the republic, the Senate has closely guarded its constitutional duty to consent to the president’s nominees, although in the end it nearly always confirms them. Still, the Senate does occasionally hold up a nominee. Benjamin Fishbourn, President George Washington’s nomination for a minor naval post, was rejected largely because he had insulted a particular senator.Mark J. Rozell, William D. Pederson, Frank J. Williams. 2000. George Washington and the Origins of the American Presidency. Portsmouth, NH: Greenwood Publishing Group, 17. Other rejected nominees included Clement Haynsworth and G. Harrold Carswell, nominated for the U.S. Supreme Court by President Nixon; Theodore Sorensen, nominated by President Carter for director of the Central Intelligence Agency; and John Tower, discussed earlier. At other times, the Senate has used its power to rigorously scrutinize the president’s nominees (Figure). Supreme Court nominee Clarence Thomas, who faced numerous sexual harassment charges from former employees, was forced to sit through repeated questioning of his character and past behavior during Senate hearings, something he referred to as “a high-tech lynching for uppity blacks.”“Hearing of the Senate Judiciary Committee on the Nomination of Clarence Thomas to the Supreme Court,” Electronic Text Center, University of Virginia Library, 11 October 1991.

A photo of Chuck Hagel in the Senate.
In 2013, President Barack Obama nominated former Republican Senator Chuck Hagel to run the Department of Defense. The president hoped that by nominating a former senator from the opposition he could ensure the confirmation process would go smoothly. Instead, however, Senator Ted Cruz used the confirmation hearing to question the Vietnam War hero’s patriotism. Hagel was eventually confirmed by a 58–41 vote. (credit: Leon E. Panetta)

More recently, the Senate has attempted a new strategy, refusing to hold hearings at all, a strategy of defeat that scholars have referred to as “malign neglect.”Jon R. Bond, Richard Fleisher, and Glen S. Krutz. 2009. “Malign Neglect: Evidence That Delay Has Become the Primary Method of Defeating Presidential Appointments” Congress & the Presidency 36, No. 3: 226–243. Despite the fact that one-third of U.S. presidents have appointed a Supreme Court justice in an election year, when Associate Justice Antonin Scalia died unexpectedly in early 2016, Senate majority leader Mitch McConnell declared that the Senate would not hold hearings on a nominee until after the next presidential election.Barbara Perry, “One-third of all U.S. presidents appointed a Supreme Court justice in an election year,” Washington Post, 29 February 2016, https://www.washingtonpost.com/news/monkey-cage/wp/2016/02/29/one-third-of-all-u-s-presidents-appointed-a-supreme-court-justice-in-an-election-year/. McConnell remained adamant even after President Barack Obama, saying he was acting in fulfillment of his constitutional duty, nominated Merrick Garland, longtime chief judge of the federal Circuit Court of Appeals for the DC Circuit. Garland is highly respected by senators from both parties and won confirmation to his DC circuit position by a 76–23 vote in the Senate.

Other presidential selections are not subject to Senate approval, including the president’s personal staff (whose most important member is the White House chief of staff) and various advisers (most notably the national security adviser). The Executive Office of the President, created by Franklin D. Roosevelt (FDR), contains a number of advisory bodies, including the Council of Economic Advisers, the National Security Council, the OMB, and the Office of the Vice President. Presidents also choose political advisers, speechwriters, and a press secretary to manage the politics and the message of the administration. In recent years, the president’s staff has become identified by the name of the place where many of its members work: the West Wing of the White House. These people serve at the pleasure of the president, and often the president reshuffles or reforms his staff during his term. Just as government bureaucracy has expanded over the centuries, so has the White House staff, which under Abraham Lincoln numbered a handful of private secretaries and a few minor functionaries. A recent report pegged the number of employees working within the White House over 450.Jennifer Liberto, “It pays to work for the White House,” CNN Money, 2 July 2014, http://money.cnn.com/2014/07/02/news/economy/white-house-salaries/ (May 1, 2016). When the staff in nearby executive buildings of the Executive Office of the President are added in, that number increases four-fold.

No Fun at Recess: Dueling Loopholes and the Limits of Presidential Appointments

When Supreme Court justice Antonin Scalia died unexpectedly in early 2016, many in Washington braced for a political sandstorm of obstruction and accusations. Such was the record of Supreme Court nominations during the Obama administration and, indeed, for the last few decades. Nor is this phenomenon restricted to nominations for the highest court in the land. The Senate has been known to occasionally block or slow appointments not because the quality of the nominee was in question but rather as a general protest against the policies of the president and/or as part of the increasing partisan bickering that occurs when the presidency is controlled by one political party and the Senate by the other. This occurred, for example, when the Senate initially refused to nominate anyone to head the Consumer Financial Protection Bureau, established in 2011, because Republicans disliked the existence of the bureau itself.

Such political holdups, however, tend to be the exception rather than the rule. For example, historically, nominees to the presidential cabinet are rarely rejected. And each Congress oversees the approval of around four thousand civilian and sixty-five thousand military appointments from the executive branch.Gary P. Gershman. 2008. The Legislative Branch of Federal Government: People, Process, and Politics. Santa Barbara, CA: ABC-CLIO. The overwhelming majority of these are confirmed in a routine and systematic fashion, and only rarely do holdups occur. But when they do, the Constitution allows for a small presidential loophole called the recess appointment. The relevant part of Article II, Section 2, of the Constitution reads:

“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

The purpose of the provision was to give the president the power to temporarily fill vacancies during times when the Senate was not in session and could not act. But presidents have typically used this loophole to get around a Senate that’s inclined to obstruct. Presidents Bill Clinton and George W. Bush made 139 and 171 recess appointments, respectively. President Obama has made far fewer recess appointments; as of May 1, 2015, he had made only thirty-two.Bruce Drake, “Obama lags his predecessors in recess appointments,” 13 January 2014, http://www.pewresearch.org/fact-tank/2014/01/13/obama-lags-his-predecessors-in-recess-appointments/ (May 1, 2016). One reason this number is so low is another loophole the Senate began using at the end of George W. Bush’s presidency, the pro forma session.

A pro forma session is a short meeting held with the understanding that no work will be done. These sessions have the effect of keeping the Senate officially in session while functionally in recess. In 2012, President Obama decided to ignore the pro forma session and make four recess appointments anyway. The Republicans in the Senate were furious and contested the appointments. Eventually, the Supreme Court had the final say in a 2014 decision that declared unequivocally that “the Senate is in session when it says it is.”National Labor Relations Board v. Canning, 573 U.S. ___ (2014). For now at least, the court’s ruling means that the president’s loophole and the Senate’s loophole cancel each other out. It seems they’ve found the middle ground whether they like it or not.

What might have been the legitimate original purpose of the recess appointment loophole? Do you believe the Senate is unfairly obstructing by effectively ending recesses altogether so as to prevent the president from making appointments without its approval?

The most visible, though arguably the least powerful, member of a president’s cabinet is the vice president. Throughout most of the nineteenth and into the twentieth century, the vast majority of vice presidents took very little action in the office unless fate intervened. Few presidents consulted with their running mates. Indeed, until the twentieth century, many presidents had little to do with the naming of their running mate at the nominating convention. The office was seen as a form of political exile, and that motivated Republicans to name Theodore Roosevelt as William McKinley’s running mate in 1900. The strategy was to get the ambitious politician out of the way while still taking advantage of his popularity. This scheme backfired, however, when McKinley was assassinated and Roosevelt became president (Figure).

Image A is an illustration of William McKinley’s assassination. Image B is a photo of Theodore Roosevelt.
In September 1901, President William McKinley’s assassination, shown here in a sketch by T. Dart Walker (a), made forty-two-year-old vice president Theodore Roosevelt (b) the youngest person to ever assume the office of U.S. president.

Vice presidents were often sent on minor missions or used as mouthpieces for the administration, often with a sharp edge. Richard Nixon’s vice president Spiro Agnew is an example. But in the 1970s, starting with Jimmy Carter, presidents made a far more conscious effort to make their vice presidents part of the governing team, placing them in charge of increasingly important issues. Sometimes, as in the case of Bill Clinton and Al Gore, the partnership appeared to be smooth if not always harmonious. In the case of George W. Bush and his very experienced vice president Dick Cheney, observers speculated whether the vice president might have exercised too much influence. Barack Obama’s choice for a running mate and subsequent two-term vice president, former Senator Joseph Biden, was picked for his experience, especially in foreign policy. President Obama relied on Vice President Biden for advice throughout his tenure. In any case, the vice presidency is no longer quite as weak as it once was, and a capable vice president can do much to augment the president’s capacity to govern across issues if the president so desires.Amy C. Gaudion and Douglas Stuart, “More Than Just a Running Mate,” The New York Times, 19 July 2012, http://campaignstops.blogs.nytimes.com/2012/07/19/more-than-just-a-running-mate/.