Legal Commentary

So I haven't changed my mind at all with regard to the most fundamental problem. I presume that no one would draw from the present inability of the Obama Administration to place the required undersecretaries etc. in office the moral that we need to return to the "good old days" of a March 4 inauguration. Indeed, we are well beyond March 4, and I presume that only a lunatic would say that we really need, say, to wait until June 1 for the inauguration.

So we have to do two things. First, come up with an explanation for the delays in appointment and confirmation of needed people. Some of this may be Obama's fault, though recall Sen. McCain's idiotic criticism of Obama for being "arrogant' in thinking of a transition before his election. In fact, we should expect candidates to appoint their "transition teams" the day after their nominations and to be consulting with them throughout the campaign. That we don't is one of the dreadful features of our political system. But even if that rather modest reform were in place, there would still be very great problems. Begin with the fact that the president-elect has no legal authority to "nominate." All he/she can do is to announce an intention to nominate. Moreover, even if we allowed, somehow or other, a president-elect to engage in the performative legal utterance of "nominating" someone for a position, there would be the independent question of which senators, the lame-ducks or the newly elected ones, would consider the nominations. One of the other terrible features of our Constitution, about which I've changed my mind not at all, is the delay in installing newly-elected (or re-elected) senators and representatives in their office. Cocoa Beach is a fine model for the rest of the country, at least with regard to members of Congress.

Consider also a fine article published in the NYTimes by Paul Light, who knows more about such issues than anyone else in the world. He begins, altogether rightly, by questioning the increasing use by President Obama of non-comfired "czars" to handle important areas of public policy. This is just another manifestation of the "imperial presidency"--what I sometimes call "constitutional dictatorship"--that is part of our present political system. But then Light writes:

[West Virginia Sen. Robert Byrd, who complained about the "czars,"]] should also ask how the Senate has contributed to the czar-itis. The Senate has done virtually nothing, for example, to address the glacial pace of confirmations that often leads presidents to expand the White House staff as well as the number of appointees who serve without Senate approval. Although he has submitted the names of nominees to the Senate relatively quickly, President Obama will be lucky if the last of his nearly 500 full-time cabinet and subcabinet officers are confirmed by March 2010.

The confirmation process has grown slower with each passing administration and the Senate has resisted nearly every chance to accelerate it. In 2004, it rejected a long list of House-sponsored reforms that would have cut the red tape that strangles the process. It has said no to a long-overdue streamlining of the financial disclosure process and even refused to add much-needed staff to the White House Office of Presidential Personnel, which is drowning in résumés.

In repeatedly rejecting commonsense reforms, the Senate has merely strengthened the incentives that lead presidents to create policy czars in the first place. It has also encouraged the unabated growth of a de facto sub-cabinet composed of roughly 2,500 presidential ?at will? appointees who serve without Senate confirmation. Most of President Obama?s cabinet secretaries, even before their confirmations, began filling their offices with chiefs of staff, deputy chiefs of staff, special assistants and confidential advisers, none of whom are accountable to the Senate....

If Mr. Byrd wants to restore Senate confirmation as the coin of the realm, he need only ask Senators John McCain, Republican of Arizona, and Russell Feingold, Democrat of Wisconsin, to reintroduce their long forgotten 1990s legislation cutting the number of at-will political appointees by a third. He should also press for an amendment to Senate rules that sets clear deadlines for bringing nominees to the floor for a vote.

Mr. Byrd should also ask the House for a copy of its 2004 reforms. At least half of the delays in the presidential appointments process appear to involve bureaucratic red tape and duplication of effort, while a quarter appear to reflect the rising and inappropriate use of personal holds by the senators to extract concessions from the president and fellow legislators.

There will always be legitimate reasons for questioning the president?s nominees as the Senate discharges its constitutional duty to give advice and consent. But before criticizing the Obama administration for overreaching, Mr. Byrd should take a harder look at his own branch of government. There is plenty of room for reform in the Senate, too.

There is also the independent issue of the ever-more-onerous "vetting" that is required of any candidate for public service. A great deal of time, apparently, is expended on crazy FBI checks in which neighbors from long ago are asked to testify to the good character of a nominee.

The United States political system is truly dinosaur-like. We are increasingly in a tar pit, and there is, alas, no good reason to believe that we will escape. This is not to saya that any other country necessarily has a better system (though I believe that some do). Rather, it is to continue to hearfelt denunication of my fellow citizens for failing even to treat these questions as worthy of discussion. We are talking about radical transformation of the banking industry, of GM, etc., because of the correct perception that old structures are proving disastrous in the 21st century. But we continue to believe, insanely, that what was done in 1787 is just fine. If James Madison had dictated that GM manufacture Chevrolets, Buicks, Pontiacs, Cadillacs, and Oldsmobiles unto eternity, then Antonin Scalia and his friends would be saying that it just has to keep doing that, come what may. If you believe that approach to General Motors would be almost literally crazy, then ask yourself why "veneration" for the forms bequeathed us by Madison and his friends is any less problematic.

Incidentally, reflect on Pres. Obama's comment that it was time for the president of GM to go, in order to provide more imaginative leadership (or simply reflect on the firing of coaches and managers, sometimes in mid-season, because of their perceived inadequacies). I certainly don't have the information to know whether Obama is correct or not, but would anyone say that the present management of GM should remain even if, by stipulation, they are inadequate? Only the President of the United States is free from any similar judgments as to inadquacy short of relection (or doing us the favor of committing a criminal offense with a "smoking gun"). Perhaps it's true that "what's good for GM would be good for the US" (i.e., trying genuinely to reform a sclerotic and dinosaur-like corporation instead of feeling stuck with what we've got, come what may).

End of screed. I hope this counts as an answer to the very legitimate question posted above.

Full post as published by Balkinization on March 31, 2009 (boomark / email).