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Further notes on our dysfunctional government

By Jack M. Balkin

The NYTimes has just posted a story on the appalling number of executive branch positions that remain unfilled because of the Senate's failure to confirm nominations that have been made or, in some cases, because the Administration has failed to nominate anyone at all. I don't know if this can properly be counted as more evidence of our dysfunctional constitution or not, but does it really matter? Here we are, with multiple challenges and even crises, and vital positions are unfilled. Take the job that most readers of Balkinziation are probably most familiar with, the head of the Office Legal Counsel. Obama is to be commended for nominating Dawn Johnson. He is, if not to be condemned, than at least to be severely criticized, for, so far as I can discern, exhibiting not a scintilla of backbone in trying to break the absolutely outrageous Republican hold on her nomination. (I am curious if any deals were made to get Harold Koh's confirmation by further allowing Dawn Johnson to be put on the back burner.) I find myself asking "what would George W. Bush have done," and the answer is that he would have made a recess appointment as Congress traipses off for a six-week vacation (and, of course, the Obamas are off to Martha's Vineyard). Now there are all sorts of problems with recess appointments, and I think they are generally unwise. So it's probably for the best that Obama hasn't done it. But Bush's allies would have been raising the roof, as they did with, say, John Bolton and other egregious nominees (from my point of view). Where are the liberal equivalents of the editorial page of the Wall Street Journal? Is Dawn Johnson another casualty either of the misguided search for bipartisanship in a Senate constituted, in significant measure of mad-dog Republicans, or is she simply being sacrified because of the belief that Charles Grassley (or God know whom) has to be appeased in order to pick up a Republican vote for medical reform? Eric Holder has apparently said that her confirmation is one of his "top priorities." One can only wonder what effort the Administration is putting into things that aren't at the top of its list. But the problems run far wider than simply the OLC, which is being run, I presume, by the absolutely first-rate, I-rejoice-for-the-country-that-they're-there Marty Lederman and David Barron. But consider some other examples mentioned by the author of the Times piece, Peter Baker:

The sluggish pace has kept Mr. Obama from having his own people enacting programs central to his mission. He is trying to fix the financial markets but does not have an assistant treasury secretary for financial markets. He is spending more money on transportation than anyone since Dwight D. Eisenhower but does not have his own inspector general watching how the dollars are used. He is fighting two wars but does not have an Army secretary.

He sent Secretary of State Hillary Rodham Clinton to Africa to talk about international development but does not have anyone running the Agency for International Development. He has invited major powers to a summit on nuclear nonproliferation but does not have an assistant secretary of state for nonproliferation. He has vowed to improve government efficiency but does not
have the chief performance officer he promised.

?If you?re running G.M. without half your senior executives in place, are you worried? I?d say your stockholders would be going nuts,? said Terry Sullivan, a professor at the University of North Carolina and executive director of the White House Transition Project, which tracks appointments. ?The notion of the American will ? it?s not being thwarted, but it?s slow to come to fruition.?

In any case, can any reasonable person believe that we have a truly functional government, "democratic," "republican," or otherwise?

Full post as published by Balkinization on August 23, 2009 (boomark / email).

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