Control without Confirmation: The Politics of Vacancies in Presidential Appointments

Scholarship on separation of powers assumes executives are constrained by legislative approval when placing agents in top policy-making positions. But presidents frequently fill vacancies in agency leadership with unconfirmed, temporary officials or leave them empty entirely. I develop a novel dataset of vacancies across 15 executive departments from 1977 to 2016 and reevaluate the conventional perspective that appointment power operates only through formal channels. I argue that presidents’ nomination strategies include leaving positions empty and making interim appointments, and this choice reflects presidents’ priorities and the character of vacant positions. The evidence indicates that interim appointees are more likely when positions have a substantial capacity to act on presidential expansion priorities and suggest that presidents can capitalize on their first-mover advantage to evade Senate confirmation. The results further suggest that separation of powers models may need to consider how deliberate inaction and sidestepping of formal powers influence political control and policy-making strategies.

Is the Failed Pandemic Response a Symptom of a Diseased Administrative State?

David E. Lewis is the Rebecca Webb Wilson University Distinguished Professor and Professor of Law (by courtesy) at Vanderbilt University. He is the author of Presidents and the Politics of Agency Design (2003) and The Politics of Presidential Appointments: Political Control and Bureaucratic Performance (2008).

The Court in a Polarized World

This chapter tracks the period after 1985, a time when party polarization transformed both presidential appointments to the Supreme Court and the elite social networks that the Justices were a part of. Starting with the 2010 appointment of Democrat Elena Kagan to fill the seat of liberal Republican John Paul Stevens, the Court’s ideological divide is also a partisan divide. This chapter explains the circumstances that propelled today’s partisan divide—circumstances that make it likely that the divide will persist. In particular, ideology is now a dominant feature of judicial nominations. Correspondingly, the conservative legal network and, with it, the Federalist Society plays a critical role in all aspects of the nomination process for Republican presidents. Once a conservative Republican joins the Court, moreover, the Federalist Society reinforces his or her conservativism through social interactions, speaking engagements, and much more. For their part, Democratic Justices are part of left-leaning social and political networks.

Pressures on the Dividing Line

Chapter 3 explores the pressures that encourage government dependence on contract and grant employees. The chapter begins by reviewing Eisenhower’s call for a “proper meshing” between the military and industry. The chapter then explains the time, bureaucratic, and political pressures that increase the temptation to use contract and grant employees in lieu of federal employees. The time pressures stem from the federal government’s (1) sluggish hiring process, (2) aging workforce, (3) high promotion speed, (4) inflated performance appraisals, and (5) and changing mission. The bureaucratic pressures stem from (1) skill gaps in mission-critical occupations, (2) the barriers to federal employee engagement, (3) disagreements on how much federal and private employees cost, (4) weak oversight, and (5) a sluggish presidential appointments process. Finally, the political pressures arise from (1) the thickening of the leadership hierarchy, (2) the need to protect government achievements and fix breakdowns, (3) public trust and distrust toward government, (4) high levels of political polarization, and (5) cabal, intrigue, and corruption.

Informal networks and judicial decisions: Insights from the Supreme Court of the Philippines, 1986–2015

To what extent do informal networks shape the decisions of the Supreme Court of the Philippines? Though often raised in the Philippines, this question has never been studied empirically. To answer it, we constructed a set of social network variables to assess how informal ties, based on university connections and work affiliations, may have influenced the court’s decisions between 1986 and 2015 in 47 politically high-profile cases. Providing statistically significant evidence for the effects of political influence (presidential appointments) and hierarchical pressure (the vote of the Chief Justice) on related networks, our analysis suggests a continuing tension on the Supreme Court bench between professionalism and informality. Because the findings advance both theoretical and empirical understanding of larger issues at the intersection of courts and society throughout the region, we recommend more attention to the role of judicial networks, external to the courts as well as within them.