LIVE: Senate Rules Committee Hearing on Procedures to Confirm Nominees 2024-07-30 19:23

Order this hearing of the Rules Committee on Senate Procedures to confirm nominees or get them confirmed. That is our goal. And I'd like to thank Ranking Member Fisher and our colleagues for being here, as well as our witnesses, Jenny Mattingly, as well from the Nonpartisan Partnership for Public Service, as well as Sean Stiff and Elizabeth Rybicki of the Congressional Research Service. Thank you all for joining us. Today we're going to hear from these three nonpartisan experts about the increasing amount of time it has been taking for the Senate to confirm nominees from presidents of both parties. We want to make that clear from the beginning. This isn't actually any kind of a partisan fight we're engaging in. Senator Fisher and I get along quite well. We're looking at this in the context of now and in the future and how this has been getting worse and worse and worse, regardless of party, and the impact these delays have on our government, have on the people that we want to recruit to be in our government, and what we can do to address it. The facts speak for themselves. In recent decades, it has taken longer to confirm nominees for each successive president. According to the Partnership for Public Service, in the first two years of the current administration, it took more than 156 days on average to confirm each executive branch nominee, up from 107 days during the Trump administration, 92 days under President Obama, and nearly three times as long as the Clinton administration, which was 56.8 days. As the Senate spends more of its time working on nominations, this leaves less time for legislating on issues that are important to the American people, difficult issues that sometimes take days to resolve bills. More than 55% of Senate votes in the first two years of both President Biden and President Trump's terms were on nominations, which is over a six-fold increase compared to the average under the four previous presidents, which was 8.5% of votes. The number of cloture votes, the votes we take to end debate on a nomination, has also skyrocketed, with more than 200 so far for executive branch nominees under our current president and 170 under his predecessor, a dramatic increase from the total of just 20 under both Presidents George W. Bush, who had nine, and Clinton, who had 11. That's 20 for two presidents, and now we are at over 200, and before that, the last administration, 170. There are a lot of other statistics that I know you want to hear me roll off here, but one thing is clear, and that is very straightforward. Under both parties, we are spending a lot more time voting on nominations than in the past, and it's taking more time under each administration, and pretty soon we are becoming a full-time employment agency, although we don't really even discuss the applicants. We just go in and vote and go in and vote. The time the Senate is spending to confirm nominees not only impacts our work on legislation, but also delays a president, no matter his or her party, from filling important positions. Here's what that looks like. While the Secretary and Deputy Secretary for five key cabinet departments, Commerce, Defense, Energy, State, and Treasury, took an average of 18 and 67 days, respectively, to confirm during this administration, other positions at those departments, like Undersecretaries and Assistant Secretaries, the people that you maybe not read about in the newspaper, they took more than 350 days. Significantly, it's taking longer for nominees during a president's first year in office when they're trying to jumpstart their work on key issues to get confirmed. The average time taken to confirm these nominees in the current and previous administration was nearly triple what it was under President Reagan. We know that there are qualified people interested in serving in government, regardless of party, and you can leave talented people in limbo for literally a year, years, or at least months, creating uncertainty in their lives. It's a reason a lot of people don't even want to try doing it, and that's not what we want in our country. The good news is there are actions we can take to improve things. One idea is to change the Senate so we could consider multiple nominees at the same time. We would still have a vote, but we would do what we call block them together, and you wouldn't do the top cabinet people that way, but you could do a group within a department that way. That is something that Senator King and Cardin and I have been working on to bundle up to 10 nominees at once. We're not talking about 100, 10 nominees at once. This would have allowed the 27 Department of Defense positions we confirmed in the first year of the current administration, not including the Secretary of Defense, to be confirmed in three sets of votes during a single week. What a game changer for the Defense Department and our country's security. We could also consider an idea such as one Senators Langford and Blunt proposed in 2019 so that either side would yield back time on the Senate floor if they wanted final votes to happen more quickly by dividing the two hours of time after cloture equally between the parties. There are also ideas like reducing the number of positions that require Senate confirmation, which is now more than 1,200, and I know Chairman Peters on Homeland Security has been interested in this topic. There is precedent for bipartisan efforts in this area like in 2011 when the Senate passed two proposals with overwhelming support from a bipartisan working group led by Senators Collins and Schumer with Senators Lieberman and Alexander, one to expedite consideration of certain nominations by a vote of 89-8 and one to reduce the number of Senate confirmed positions by 163 by a vote of 79-20. No, not much when you're dealing with 1,200, but it's still 163 people that can actually get into the jobs. I supported both these proposals at the time as did Leader McConnell and Senator Wicker who is on this committee. What we're here to discuss today is not about giving an advantage to one party or the other. It's why it's good to do it when the election is in flux and with bipartisan support. These options could be designed to take effect in the future when you don't know who's going to be the president regardless of the outcome of this election. The framers recognize the importance of the Senate's role to provide a check on the executive branch by requiring advice and consent over key positions in our government. As a Rules Committee, it is important that we take a close look at Senate procedures and how they are working and that we are willing to partner across the aisle on common sense measures to improve how we do our work on behalf of the American people. The only other possibility, if we're not able to do this together, one party or the other can just do it by invoking what we call the nuclear option that has happened in the past. I'd rather do this together, but of course that's also a possibility and it has at least sped things up. Whatever it is, what we're doing now isn't working when we're spending all our time on being a full-time employment agency when there are so many pressing issues before the U.S. Senate. Thank you for our witnesses for being here and I'll now recognize Ranking Member Deb Fischer for her opening. Thank you. Good afternoon. I'd like to thank Chairman Klobuchar for holding this hearing and I'd also like to thank our three witnesses for being with us. Today we are here to learn about the nomination process in the U.S. Senate, changes to the process over time, and what, if any, changes may improve that process. In taking up a nomination, the Senate is carrying out its constitutional responsibilities. First, the Appointments Clause of the Constitution explicitly directs the Senate to provide advice and consent. Second, nominations provide the Senate an opportunity for oversight, and while oversight responsibilities are not explicit in the Constitution, the Supreme Court has said they are inherent in the legislative process set forth by Article I. The Constitution does not subject every presidential appointment to the advice and consent process. It only requires advice and consent for the principal officers. However, the Constitution does allow Congress to decide whether to apply advice and consent to inferior officers. I'm sure our experts from the Constitutional, I'm sorry, from the Congressional Research Service, will explain the difference between a principal and an inferior officer. But the important thing to remember is that these individuals will be charged with carrying out the President's policy agenda and the laws passed by Congress. These individuals will be accountable to Congress for the agencies they've been appointed to manage. The oversight process is a valuable oversight tool. It provides leverage to get responses to congressional oversight requests from agencies that might otherwise be reluctant to share that information. It's also a chance for the Senate to speak directly to nominees about Senate priorities. Outside of the Senate's constitutional responsibilities, the Senate has a tradition of robust debate and protections for the minority party. Those traditions apply to the nominations process as well. When an individual senator holds a nomination through the unanimous consent process, that senator is engaging the Senate's tradition of robust debate. Conversations surrounding the confirmation process have been going on for decades. There have been large and small efforts to reform the process over the years. The last large-scale change came in the 112th Congress and removed 163 positions from Senate confirmation and created the privilege calendar. Those conversations continue today. Just last week, Senator Grassley and Senator Cortez Masto introduced a bipartisan bill that would require Senate confirmation for the director of the Secret Service. It's a call to subject that director to greater oversight after the assassination attempt of President Trump. While this bill only applies to one position, it is an example of how oversight concerns can drive changes to the nominations process. It is also an illustration of why proposed changes to the nomination process must be carefully and thoughtfully considered. The nominations process must balance the constitutional responsibilities of advice and consent and oversight and traditions of the Senate with the desires of an administration to fill positions quickly. I look forward to today's testimony. Thank you, Madam Chair. Thank you, Ranking Member Fischer. I'll introduce our witnesses, two of them, and then Senator Fischer will introduce Mr. Stiff. So, thank you. Our first witness is Jenny Mattingly, our Vice President for Government Affairs at the Partnership for Public Service. She previously served with the Office of Management and Budget and as the founding director of the White House Leadership Development Program. She received her bachelor's degree from Whitman College and her master's from GW University. Our next witness is Elizabeth Rybicki, a specialist on Congress and the legislative process also at CRS, where Sean Stiff also works. She first began her career at CRS as an intern and after time with the National Archives and Records Administration, returned to CRS in 2002. She received her bachelor's degree from Dartmouth College and her doctorate from none other than the University of Minnesota. Excellent choice. Ranking Member Fischer. I thought you were going to have me comment on the excellent choice. No, I was going to allow you to. Yes, you could do that. I'll say very good. We won't go over that Nebraska Gophers game. Stop. Don't be harsh. Go ahead. Mr. Stiff, welcome. Mr. Stiff is a legislative attorney for the American Law Division of the Congressional Research Service. He principally covers appropriations law, federal credit programs, government organization, oversight, and related constitutional issues. He joined CRS in 2019 after practicing litigation with an Ohio-based firm on a broad range of federal and state legal matters. I welcome you here today and thank you for your information you're going to provide us with. If the witnesses could rise and raise their right hand. Do you swear that the testimony you're about to give is the whole truth and the truth and nothing but the truth, so help you God? Thank you. You can all be seated. Ms. Mattingly, you are recognized for five minutes. Chairwoman Klobuchar, Ranking Member Fischer, and members of the committee, I'm with the Partnership for Public Service, a nonpartisan nonprofit that focuses on building a better government and stronger democracy. The partnership is home to the Center for Presidential Transition, a nonpartisan source of knowledge and resources on transitioning of government from one administration to the next. One specific area of focus for our work is the role that strong leadership plays in effective agency performance and service delivery for your constituents. Senate-confirmed appointees are crucial to that leadership. Thank you for the opportunity to speak with you today about the Senate confirmation process. As you know, this is a fundamental role of the Senate as enshrined in Article II of the Constitution. This process is meant to give the a strong role in assessing the quality of nominees for the most critical appointments and to serve as a crucial part of the checks and balances between the branches. But it has become unworkable and is likely to get worse. The data tells an eye-opening story. Between 1960 and 2020, the number of Senate-confirmed positions increased by over 70 percent, from 779 to around 1,340. In President Reagan's first term, it took an average of 49 days to confirm his nominees. For President Trump's first term, it soared to an average of 160 days. And now, for the first term to date for President Biden, that average is 182 days, an almost four times increase. In the 1990s, over 85 percent of votes were on legislation, very few on nominations. Today, over 60 percent of votes are on nominations. During the 1990s and early 2000s, there were only 35 cloture votes total on executive nominees. Since then, there have been 425 cloture votes on nominees. What you've experienced as senators and what our research confirms is that filling these positions is not just an issue between Election Day and early into a new administration. It is a major challenge throughout the term of any modern presidency. Delays in getting leadership in place have ripple effects across our government and ultimately impact the people government serves. Under the current dysfunctional system, each stakeholder in the process loses—the Senate, the executive branch, the public, and individuals who step up to serve our country as appointees. For the Senate, the time spent processing nominations clearly eats into time it could be spending on legislative and other priorities. Potential appointees undergo an appropriately intense vetting process but face uncertainty of how long the confirmation process will take and if their nomination will be considered at all. To make this investment and have their lives, as well as that of their families, stuck in confirmation limbo discourages qualified individuals from wanting to serve. For agencies, the lengthy vacancies, slow decision-making, and long-term strategic planning and modernization efforts undermine employee morale. This harms the performance of agencies and impacts services from veterans care to support for America's farmers. Nowhere is that clearer than in the national security space. After the horrible attack on our country on September 11, 2001, the bipartisan commission tasked with investigating the attack raised alarm about vacancies in top national security positions in a president's first year and recommended that these positions be expedited for consideration. In 2001, only 57% of top national security positions were filled on the day of 9-11. Yet 20 years later, on September 11, 2021, only 27% of those positions were filled. And while that raised to 67% by the end of the calendar year, we are clearly falling short of the 9-11 commission's call to action. It's clear that the confirmation process needs to be reformed to preserve the Senate's constitutional role of advice and consent, while also providing reasonable, efficient paths to confirmation for qualified individuals. Key areas of consideration offered in my written testimony include developing a bundling model for nominations to allow for at least some nominations to be batched together for a final vote on the Senate floor, improving the privileged calendar, and pursuing other changes to Senate processes for executive branch nominations. And just as in 2011, when then-leaders for the Rules Committee, Senator Schumer and Senator Alexander, led confirmation reform efforts, it is imperative to pair a reduction in the overall level of Senate positions with any process changes. If not, any process reforms achieved will be diminished by the unwieldy number of positions subject to confirmation. Improving the Senate confirmation process is not just a good government initiative, it is a national security, public health, and economic imperative. Our government needs capable leaders to address the country's most urgent needs and to act in moments of crisis. Thank you again for your focus on this important issue. We look forward to working with you to find solutions to these tough challenges. Very good. Thank you very much. Mr. Stiff. Thank you, Chairwoman Klobuchar, Ranking Member Fischer, and members of the committee. My name is Sean Stiff. I'm a legislative attorney in the American Law Division of the Congressional Research Service, and I'm honored to testify here today on the Appointments Clause of the U.S. Constitution and the Senate's Advice and Consent Function. The Appointments Clause appears in Article II, Section 2. It begins by stating that the President shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and counsels, judges of the Supreme Court, and all other officers of the United States whose appointment is not provided for elsewhere in the Constitution. Writing in April 1788, Alexander Hamilton argued that giving the President the sole responsibility to pick a nominee would instill in the President a livelier sense of duty, and giving the Senate the sole power to then confirm a nominee would restrain the President's choice. Now, the Senate doesn't need to confirm all officers, and that's because the clause continues by recognizing a class of officers called inferior officers, for whom Senate advice and consent is the default method of appointment, but not the only method. The clause says that the Congress may by law best the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the heads of departments. If Congress chooses to re-examine an existing Senate confirmation requirement, and there are hundreds of existing statutory positions, that do call for advice and consent, the Supreme Court precedent helps identify Congress's legal discretion in this regard. That precedent distinguishes officers from non-officers and principal officers from inferior officers. Deciding whether an individual is an officer determines whether the clause applies at all. An officer holds an office. The Court has said that holding office connotes tenure, duration, and duties that are described in statute. Contrast that with a non-officer who, for example, has only occasional duties. In addition, the Court has said that an officer exercises significant authority under federal law. A non-officer does not. We know some of the powers that count as significant authority from Supreme Court case law, issuing a regulation, for example. Now, if the person holds a statutory position and wields significant authority, they are an officer. But what kind of officer? A person is an inferior officer, the Court has said, if some other person appointed as a principal officer supervises or directs their work. They are a principal officer, by contrast, if no other principal officer directs their work. The Senate must, under the Appointments Clause, confirm principal officers. It does not need to confirm inferior officers or non-officers. There are potential trade-offs for requiring Senate confirmation when the Constitution does not. The advice and consent function can be a powerful tool. The Court has said that the Senate's confirmation decisions are unreviewable, so Senators can reject or confirm a nominee for most any reason. The confirmation process allows Senators to obtain commitments from nominees about how the nominee will conduct themselves when in office, if confirmed. And it also gives Senators a point of leverage with the administration who is looking to have that nominee confirmed. On the other hand, as we've heard, the confirmation process can take time, both for the Executive Branch and for the Senate. Some positions might go vacant as a result. Acting officials might fill others, which a Senator might not prefer. Whether confirmed or not, officers are subject to Congress's broad power to inquire and to control agency funding. These potential trade-offs for requiring Senate confirmation when the Constitution does not do not point in one direction, and Senators can and do disagree. But what is clear, according to the Court, is that in those circumstances where the Appointments Clause does not require advice and consent, it's up to Congress to decide how to strike that balance. I welcome your questions. Thank you very much. Next up, Ms. Rybicki. Thank you, Madam Chair, Ranking Member Fischer, and members of the Committee. I am truly honored to be here to speak about the Senate rules and procedures for considering nominations. I want to say at the outset that there are many people at the Congressional Research Service who work on the confirmation process and legislative process who have helped, and especially Mike Green, who has worked a lot in this area as well with me. As you know, the Senate relies on its committee system to process the number of nominations that it receives. This means the job of the committees is not just to review the information that's received from the executive branch, like the Financial Disclosure Report, but also to do their own investigations. Committees have their own questionnaires. Committees meet with nominees because, after all, these nominees are going to be the ones who are ensuring that the laws are being executed the way Congress intended. Committees have also the responsibility of holding public hearings. Most nominations have hearings in which nominees can be questioned by all senators and sometimes are even asked to commit to returning to the Senate to answer questions as those come up. When a committee recommends further action, that does require the committee to meet with a majority of its members present to vote to report that nomination. The only other way for a nomination to be removed from a committee is through unanimous consent action on the floor. The full Senate could discharge a committee, but otherwise the committee has to meet to report. Now, there is a special category of nominations that the Chairwoman mentioned in her opening statement of privileged nominations. These nominations are not formally sent to committee, and so the committee does not have to meet to report them. But the committees of jurisdiction are still collecting that information. They're doing the same kinds of investigations. Once they've indicated that the information has been gathered, then that nomination can be in the same parliamentary status as if the committee had reported. This privileged nominations calendar was a result of the 2011 bipartisan reforms that took place and put a number on there. Now, once the full Senate acts, there are essentially two routes for consideration on the Senate floor. The first and most common, if we look back several Congresses, is to use unanimous consent. Unanimous consent is cleared in advance with all personal offices. As long as the Senator does not indicate that they have an objection, then that nomination can pass rapidly on the floor. Absent unanimous consent, then the Senate has to use its cloture process. The cloture process has five steps. First, there has to be an agreement to take up the nomination. This is a non-debatable motion. It's a simple majority vote. Once on the nomination, the second step, you can file cloture on the nomination. Cloture proposes to bring the nomination to a vote, but the vote on cloture does not happen the day that cloture is made. There's a two days of session ripening period before the Senate votes on cloture. That's a majority vote for nominations, but what it does is limit further consideration to a maximum of two hours for most nominations. It's 30 hours for the highest ranking. The fourth step is debate, and then the fifth would be the vote on confirmation. We have to process a single nomination by the cloture process, the taking up the nomination, filing cloture, two day waiting period, vote on cloture, up to two hours for most nominations of debate, and then the vote on confirmation. What we see in practice in the Senate is the use of stacking motions. The vote that Senators just took before the meeting, that was a cloture motion on the nomination. By unanimous consent, after this hearing, they'll be voting to actually confirm the nomination. Stacking cloture motions is what the leader can do in order to have that two day ripening period occur at the same time. Yesterday, the majority leader filed cloture on three nominations. Those three cloture motions will ripen tomorrow, but then from that point on, they have to be considered sequentially after unanimous consent. There could be a cloture vote, and by the book under the rule, there'll be two hours later for the confirmation vote, the immediate already ripened second cloture motion, and then up to two hours for the vote on confirmation, and then another cloture vote. The Senate shapes these by unanimous consent agreements for the convenience of all Senators, so we have predictability about when the vote is going to occur, but those unanimous consent agreements reflect the terms of the rule. My written testimony talks about the rules changes, some of which have been bipartisan in the Senate, most prominently the 2011 reforms, and I look forward to answering your questions. Thank you very much. Very good. Thank you all. U.S. women just won gold in gymnastics. Okay, so let's talk about getting gold, how we could improve this process, move our team along, regardless of side. Could you talk, Ms. Manningly, about how reliance on these acting officials impacts the work of the federal government when you don't have people that have actually been confirmed in the jobs for sometimes years? Absolutely. Thank you for that question. One of the things we've seen is that, and as likely you have seen, many agencies rely on the use of acting officials when a position is vacant, when it's waiting confirmation. Agencies often either have career officials or other political appointees act in those positions. One of the things we've seen, both on what I've heard from officials who are acting, is that it's very tough sometimes to make those long-term decisions, especially if an agency is in need of reform, is dealing with management challenges, because the acting officials are only there for a certain length of time. Additionally, with vacancies for agencies and staff that's in agencies, they also are in a bit of a limbo because they don't know which work is going to be carried forward once political comes in. Mr. Stipp, are there legal, can there be legal constraints on the actings? Thank you for the question. So there are, the primary statute that provides for acting officials is the Vacancies Reform Act, and it limits the extent to which someone can temporarily serve in an acting official in essentially two ways. First, who can serve, and then for how long someone can serve. So there is the possibility that at some point, if the statutory time period is run, for example, then the office would go vacant, which raises questions about whether the non-delegable duties of that office can be exercised, and if so, by whom. Right. Ms. Mattingly, just one other quick question. How about, what impact do you think it has in your roles with OMB and the like on people being willing to even put their name in, when you could have your whole family put on hold for a year or so? Absolutely. Thank you for that question. I've certainly talked to a bunch of many folks who are being considered for positions over the years, and one of the things that they are concerned about is whether and how long it will take them to get confirmed. And when I think about, I was talking to a group of technologists the other day, senior folks who work on cyber, on AI, some of the big issues agencies are facing, and they were highly concerned about, would they have to move their families? They've got aging parents who they're also watching. They've got spouses. And so it becomes this limbo, if you will, and this uncertainty of how the process works, becomes a really personal, tricky decision to getting these qualified folks to step up. Exactly. Ms. Rybicki, talking about solutions here, this idea of bundling, and could you talk about what the process now is with multiples and why it takes so long and how they end up, just when I look at these more non-controversial ones, they end up getting confirmed anyway with maybe nearly a unanimous vote. And if we could just put them together, you could have literally the same person could vote against the group of 10 or could vote against each one. They could still have their voice heard in that way, but we would not have this crazy situation. You want to answer that? Yes, you're correct that under the current process, while many nominations are approved and block, meaning all together, that is done by unanimous consent. And absent unanimous consent, then each nomination has to be considered one at a time. You can't bundle together under the current procedure. And we've bundled a few times here and there, but the same person who may want to object to the same thing would object to the bundling. Well, right, even excluding, so military promotions and foreign service nominations arrive in the Senate in lists of dozens or hundreds. So those are routinely, even about, it's about half historically are still passed by unanimous consent and a large proportion, over 80% of the hundreds or so that are approved by unanimous consent are in and blocks. So we do have even the, but that's by unanimous consent only. Right, right. But if you were to change the rules somehow with some threshold to get to your blocking, probably with the committee chairs or agreeing to it, you, I just keep thinking with Senator Wicker had to walk out for a call, but the Department of Defense argument that I made with these three groups of 10, you could get them done in a week instead of the months and months and months it took. Ms. Mattingly, do you think the blocking idea would be an improvement? We do think that it's a very promising idea to look at batching nominees together so that there's one vote for several nominees at a time, particularly those that are non-controversial and both looking at ones that are coming from either already on the privileged calendar or all or across other nominees. Just one last question because my colleagues are here. 2011 successful in the privileged calendar. And also was that the time some of them were omitted then that were, yes. So what made that successful? Did that work back then? What made it successful is that there were multiple senators who took a look at the data, took a look at how the process was impacting the Senate, impacting agencies and determined that a solution at that point needed to be made. It was a bipartisan effort, as mentioned, earlier. And so really the data at that time was already showing trend lines that the process was getting slower and slower. And that data has just gotten worse from here in terms of length. Okay. Thank you. Senator Fischer. Thank you, Madam Chair. Mr. Stiff, you told us a little bit about the principal office holder and the inferior office holder and just what identified them as such that the obviously an officer holds an office. She said it exercises significant authority, including regulations. If Congress did decide to remove a position from advice and consent, how would Congress signal its view that the position does not fit within that principal definition? So ultimately the question of whether a position is a principal officer is determined by the duties and responsibilities of that office and their relation to other officers. So one way to signal it in sort of a non-binding sense would be a finding section or a sense of Congress expressing the view of Congress that this is not a principal officer. More directly, pairing the change in the appointment method with changes in the relationships of that office to other officers to make them as a legal matter or principal officer, make their work subject to direction and supervision by someone else. So in the findings, basically we'd need a checklist like you provided that would define what a principal is, what an inferior officer is. Would you recommend something that concrete to be in the legislation? What would you do? You could use, and certainly Congress does use, sense of Congress provisions. They are not typically deemed operative though, so at the end of the day it's still going to be a legal question of whether the substantive authorities of the office are those of principal officer or inferior officer. And if we would remove a principal officer from the process as we have it now for advice and consent, what would be possible consequences of that? Do you see positives and negatives? What do you see as consequences? So I can sort of speak to the legal consequences of taking someone who as a legal matter is a principal officer and making them appointable in some way other than advice and consent. And in that circumstance there would be the potential that if a party withstanding or a party that is the subject of an enforcement action raises an appointments clauses argument saying that this is as a legal matter a principal officer but they're improperly appointed, the court has said that a person in that position exercises authority that they don't lawfully have. And so in past cases we have seen the Supreme Court, for example, set aside actions of officials who were acting in a way that was inconsistent with their method of appointment. And how would the court determine standing in a case like this? Would it depend on what position it would be for? What department it would be in? How would that be determined? Would you wager a guess? So the standing analysis is whether the person bringing or maintaining the suit suffers an injury that is traceable to the challenge government action. Oftentimes though these appointments clause issues are raised as defenses to actions that are brought by the government itself. Would that be difficult to to be able to prove that you would suffer from that? I think it depends on the case, but when the court has taken up appointments clause issues in recent years it has focused on sort of the merits question of whether this is a properly appointed officer. Thank you. Ms. Rubicki, in the past when we've watched the Senate consider nomination reform, there's been advantages and disadvantages that had been considered. What do you think would be advantages and disadvantages that we should consider when we're looking at future efforts in reforming nomination process? Yes, when you look at the history of past efforts to change procedure, you can see that there is general agreement on the goal of the confirmation process in that generally senators want the vacancies to be filled, right? There isn't a senator saying that we want this to take forever, right? There's an efficiency goal. There's also though a goal of meeting the advice and consent role of the Senate, right? Senators don't want the Senate to be a rubber stamp, so there's an important evaluation role, but what you see from a procedure perspective, we've got these two goals of efficiency and evaluation and what really matters and what we see from the history of this is what the details of that procedural reform are because you're trying to strike a balance where it's both letting the Senate make a decision, right, as well as still preserving this ability of evaluation. When we look at the reform that took place in 2011 that's been brought up a couple times here, did any of those changes result in any meaningful change in the at the pace that we're doing nominations currently in the Senate? So I defer to the excellent data by the partnership as well as my colleague Barry McMillan has cut circuit and district court nominations if by pace you mean like length of time, right? And as we've heard, right, one way to measure is how many days it takes from confirmation, right, that has increased. But when looking at various changes, it's, you know, it also can be, you know, the we're looking at a particular type, like do the circuit court nominations possibly go through, you know, faster than the district court and that, you know, can be something to look at as well. So the 2011 reforms were one that had to have them move, not go to committee, right, and so it didn't have a process for floor consideration. It's just about skipping that committee step and we do see in another study by one of my colleagues, right, about 11 percent of those do get requested to be referred to committee by one senator. What that means for the vast majority, they're not going to committee and the committee is not having that meeting and voting to report. Thank you. Very good. Next up, Senator Merkley. Thank you, Madam Chair, and thank you to both you and the Ranking Member Fisher for holding this conversation. The perspective that many of us see on nominations is that the challenge is a reflection of almost tribal level warfare between the parties. The minority, regardless of if there is a president of the opposite party in the Oval Office, has an incentive to slow things down, make it difficult to extract promises and regardless of who's there, which is why right now is the right time for us to have this conversation. We have no idea who will be in the Oval Office. We have no idea who will be in the majority of the Senate. There have been three nuclear options. Both parties have engaged in it regarding nominations. Wouldn't it be great if this committee could really sit down and hash out reforms, recognizing that this expanding tension in which warfare is conducted by the minority against the president of an opposite party is just not serving our democracy well? Again, thank you for holding the hearing. You all have put forward, but the only way I see us pursuing these reforms is by that type of conversation when we're uncertain about who will be in charge in the future, or it's going to happen by nuclear option when one side is extremely frustrated as has happened three times so far. Anyway, so that says how challenging this is. I think the stats, Ms. Mentley, that you put forward about how many of our votes are now on, I think it was your testimony on culture votes and nominations, that 15% of our votes under Bush and 14% under Obama in their first terms were on nominations. With President Trump, it was 64%. It's just gotten higher. Here you have 100 talented people coming together with all their experience in the world. We just spend an incredibly tediously slow nomination process instead of putting all those talents to work on legislation to make America better. One of the things mentioned was the privilege calendar and how it was reformed that was intended to work better, but didn't work so well. There are some ideas in your testimony about how we could improve that. Could any of you elaborate? I'm happy to go ahead and take that one. We do think there are a couple ways that you could think about reforming the privilege calendar currently. Right now, we could think about raising the number of senators it takes to refer a nominee back to committee. As mentioned earlier, the nominees that go onto the privilege calendar are not going to committee first, but a senator can request that they go back to committee. You could also look at making that request referral come from a member of the committee of jurisdiction who's going to be overseeing that. We also think that more positions could be added. One of the groups of positions that's on the privilege calendar are part-time boards and commissions. Think about National Commission of the Humanities. There are all these that Congress has created multiple positions on that are right now. Many of them have advice and consent requirements from the Senate, but a lot of these boards and commissions currently are vacant. They don't actually have anybody sitting in there. Some of these are positions because they are not the top agency folks who are overseeing these large agencies with significant management experiences. These are part-time folks, so we could certainly look at some of those positions about both whether they need to be converted to a different type of political appointment or if they should be moved to the privilege calendar for faster consideration. What I've seen in the testimony was that the actual time for folks on the privilege calendar is slower than those who go to the committee and has been slower now than it was when that reform was passed. So just getting fewer people or more people on the privilege list doesn't help us. That's correct. That's why one of our recommendations is for a lot of these boards and commissions that are part-time, for persistently vacant positions, for positions like chief financial officers, chief information officers, where a vast majority are already not Senate-confirmed, there's only a handful, we think those are ripe for consideration of moving to a different presidential appointment and moving them away from needing Senate confirmation to clear that out. Thank you. Just earlier today we were having a conversation in the Foreign Relations Committee about the damage that's being done to our competition with China because they have ambassadors in place working hard in so many countries where we have so many vacancies. Just an example of how there's a bipartisan conversation earlier today about the damage being done to the United States interest because of this broken nomination process. Somehow we have to find a way to overcome our partisan instincts in a very partisan world and I think now is a great time when we don't know who will be in charge. So I'm really glad we're holding this hearing. Okay, thank you and thank you Senator Merkley for your leadership in this area for so long. I'm just hoping something's going to happen where we can move on one of these proposals and one of these days we're going to be victorious because this is just no one wants to come. They did not run for the Senate to run an employment agency for year after year after year. Senator Butler, you are next. Senator Butler is here with us for a short period of time so she has a very big interest in moving this along. Thank you Senator Klobuchar, Ranking Member Fischer for today's hearing. I'm sure my appearance at today's hearing was a little curious for folks and not only do I take my service to the committee seriously into the chamber but this is actually one of the areas that I am dumbfounded by and so I've been trying to understand through conversations with my colleagues, committee members, like how does this work? How do these rules get created? Why do we do it this way? And so to be here and be able to ask questions here from people who are actually looking at this objectively with the intention of trying to further enable this body to do the people's work, it was an opportunity that I couldn't pass up and Senator Klobuchar appropriately characterized. My time here is short and I want to have as great an impact on doing the work of the people of California and the people of this country in as impactful way as I possibly can. That being said, I have not only been dumbfounded but have reached times of great frustration trying to understand exactly how to to do that. I serve on the Judiciary Committee where many district courts in California have vacancies that have had long-standing vacancies and vacancies that truly create a delay in justice for California residents and so this is not just an exercise in trying to understand the processes of the Senate. It truly is about how do we do the best job that we can for the most people that we can to, in my opinion, further enable the functions of government on behalf of the people who need it most. Here are my questions. There were a set of potential solutions that were outlined in some of the documents and in conversations that I've had with my colleagues, solutions that have been proposed in the past, solutions that have not yet been proposed but are under examination. Mr. Stiff, I just wanted to note there was this question of reducing the number of Senate confirmed positions and we've had some conversation and question about that. I'd like to know your thought about Ms. Mattingly's just last comment about reducing the number of positions that go to advice and consent or could be sort of just left to the executive office to figure out. You talked about a standing question but when I think about my service on homeland security, for example, an hour responsibility of oversight on the U.S. Postal Service. There is a Board of Directors for the U.S. Postal Service and then there's a Postal Service Commission, both having, you know, requiring hearings and all the like. So talk to me a little bit about some of those more secondary positions like the commission that require, how do you respond or how would you apply your response to Senator Fischer in situations where there potentially are redundancies and positions that have been vacant for a while and Ms. Mattingly's sort of reference in her last comment. That's a lot but I'm really just trying to, I want to understand how your opinion on standing applies across the spectrum of duties and appointments. Sure, so the sort of fundamental question, right, is whether there is another appointment method that the Constitution allows for a given position and so that is answered by determining whether the person we're talking about is a principal officer versus an inferior officer and I can't speak to any particular position here today but in the past, the court has determined whether someone is subject to direction and supervision by another principal officer by asking, for example, can they be removed by that other person? Does that other person review and have the ability to revise the decisions they make? Do they exercise other sorts of administrative control like establishing procedures that the person we're looking at has to follow? So those are all the sorts of direction and supervision questions you would consider if you were looking at a given position to say can we change the appointment method without running afoul of the appointments clause. Thank you, Madam Chair. I would, I'm gonna, I intend to submit a couple questions to the record for. Okay, you have an extra one. No, I'll submit them to the record. I know we're trying to move. Yeah, we're trying to show how we can be efficient in the Senate. Senator Fischer, did you want to ask anything there? Okay, good. So Senator Merkley and I were just talking in a very constructive way just how we really have to move on this soon if we're going to. Obviously in the fall, September, if we're going to make even minor changes to confirmation, it would take a lot of people agreeing. I just think it would be so smart as we know many of these have passed when we didn't know what the outcome of an election was. And I said, as I noted, the other alternative is one party or the other. If they end up winning, it's just going to have to do something because it's just so unfair to people who are up for these positions. It's so unfair to the country. It so hurts our competitiveness and our security interests internationally when we hold these off. And there's a lot of senators interested in moving on this. So we'll make it our job to try to figure out, Senator Fischer, if there's anything we can do before this election. But I really appreciated your thoughtful commentary today. And thank you for the productive hearing. And I look forward to continuing to work with my colleagues on this committee in a bipartisan manner to ensure the Senate functions efficiently. We're always good when there's something sudden that comes up we have to do, but it's the grinding day in and day out. And some of these major issues are just left out there where I think we could come together on something on housing or child care or budget issues. And it just becomes very frustrating for everyone. So with that, thanks for your ideas and your thoughtful discussion. The hearing record will remain open for one week and we are adjourned. Thank you.