Season 2, Episode 3 | Surviving the Senate: Executive Confirmations

Why does the President need the Senate’s approval to appoint people to the executive branch? Why is it so hard to get those people confirmed? And has the whole process become more about political theater than public service?

In this episode of This Constitution, hosts Savannah Eccles Johnston and Matthew Brogdon unpack the constitutional roots and modern realities of executive confirmations. They explore how this check on presidential power has evolved over time, starting from full floor debates to closed-door committees and now, into viral, made-for-TV public hearings.

Savannah and Matthew explain why Senate confirmation was never a given, how firing power differs from hiring power, and what makes this process both essential and inefficient. They also take on key issues: Are there too many confirmable positions? Is the Senate spending too much time playing politics instead of governing? And is reform even possible?

With historical anecdotes, constitutional insight, and present-day implications, this episode offers a comprehensive look at how and why executive confirmations matter more than ever.

In This Episode

• (00:00:00) Introduction to executive confirmations
• (00:00:29) Why Senate participation is required
• (00:01:24) Historical context: Presidential vs. royal appointments
• (00:03:00) The power to fire vs. the power to hire
• (00:04:50) The idea of life-tenure appointments and Smith’s proposal
• (00:06:27) Rise of committees and public hearings
• (00:07:45) Progressive Era and distrust in party machines
• (00:08:46) Congress asserting itself post-Civil War (1868)
• (00:09:56) Volume and backlog: 1100+ roles, 500+ unfilled
• (00:10:29) What the modern confirmation process looks like
• (00:11:18) Three overburdened Senate committees
• (00:12:15) Should we reduce the number of confirmable roles?
• (00:14:39) Reform ideas: Time limits, Senate scheduling
• (00:15:58) Cloture votes, the filibuster, and slowdowns
• (00:17:00) Cabinet delays: Then vs. now (Bush to Biden)
• (00:19:00) Committee triaging: Prioritizing key departments
• (00:20:46) Controversial roles and unfilled posts
• (00:21:46) Partisanship and personal political ambition
• (00:22:46) Historical examples of rejected or withdrawn nominees
• (00:23:54) Are public hearings useful or just performative?
• (00:27:00) Final thoughts on checks, balances, and reform

Notable quotes

[00:02:08]

"This quality control matters here in this process. We're making sure that people who hold these positions of immense public trust are verified, decent, capable, competent people." —Savannah Eccles Johnston

[00:03:32]

"The Constitution only has one thing to say about removing people from office, and that is the impeachment power… but it’s really a nuclear option." —Matthew Brogdon

Transcript

[00:00:00] Intro: We the people, do ordain and establish this constitution. 

[00:00:11] Savannah Eccles Johnston: Welcome to This Constitution. My name is Savannah Eccles Johnston. 

[00:00:14] Matthew Brogdon: And I'm Matthew Brogdon.

[00:00:15] Savannah Eccles Johnston: Today we're going to talk about executive confirmations, which is the really-in-the-news item right now. So the first big question we have to ask is why. Why is the Senate required to participate?

[00:00:29] Savannah Eccles Johnston: The, uh, confirmation process for executive officers? 

[00:00:33] Matthew Brogdon: Yeah, it's not obvious actually. I mean, we take it for granted because we've always had a, what we would call a Republican executive. An elected executive has to ask part of the legislature's permission in order to put principal deputies in place. These people like cabinet officers, Secretaries of State, and Secretary of the Treasury and the Attorney General and all that sort of thing, and about 1100 other people.

[00:00:58] Matthew Brogdon: But it's not obvious. I mean, the framers of the Constitution debated this, whether this should be the case. The king of England did not have to ask for confirmation either for executive officers or for judges that just the power to appoint to office was totally a royal prerogative, right? Because these were people who were just carrying out the king's policies and so forth, and you could argue that.

[00:01:24] Matthew Brogdon: The same thing is true now. The president is appointing these people to assist him in the execution of the laws. Why not just let the president pick the people he wants to do the job? And the feeling was, the feeling has been pretty much universally in the states as well. 

[00:01:40] Savannah Eccles Johnston: Mm-hmm. 

[00:01:40] Matthew Brogdon: That you need some kind of backstop to make sure the executives are not just handing out these offices as.

[00:01:46] Matthew Brogdon: Sort of favors or, you know, to feather their own nest for when they leave office or do all sorts of other things with them. So the legislature's been in American constitutionalism, at least an essential part of the [00:02:00] executives filling of offices, staffing up the executive branch. 

[00:02:04] Savannah Eccles Johnston: Right. So this quality control matters here in this process.

[00:02:08] Savannah Eccles Johnston: If we're making sure that people who hold these positions of immense public trust are, uh, verified. Decent, capable, competent people. 

[00:02:19] Matthew Brogdon: I like the quality-control bit because sometimes we tend to think of it, if you just said control, that wouldn't be quite right. It's sort of ensuring quality up front because just because the Senate can consent to somebody, they're doing that on the basis of what they think they're going to do and on the basis of what they've done in the past.

[00:02:37] Matthew Brogdon: But once it's done. It's not as though this confirming authority in the Senate doesn't get to come back and sort of review the officer periodically and go, well, it's been six months now. How's it going? Are we gonna keep you or not? Too bad, once you've hired them, I mean, failing some pretty extraordinary measures, that's a done deal. 

[00:02:57] Savannah Eccles Johnston: And actually this is a point we should get to. The [00:03:00 President needs advice and consent for hiring, but not for firing. Mm-hmm. And that seems to be the, although the Constitution says nothing about that. That's kind of the historical precedent, right? Jackson can fire his Secretary of the Treasury and really what can.

[00:03:13] Savannah Eccles Johnston: The Senate do about that? 

[00:03:15] Matthew Brogdon: Yeah. The Constitution only has one thing to say about removing people from office, and that is the impeachment power, right? Congress can impeach anybody in the government, judicial executive, and so on, and they can kick out their own members. So there is a means of firing people.

[00:03:32] Matthew Brogdon: Congress is involved in it, but it's really a nuclear option, right? So there's got to be. Some method short of impeachment to remove people. Although there was one crazy person in the House of Representatives in the first Congress whenever they were sort of debating this, really going like, we're gonna create these new offices.

[00:03:50] Matthew Brogdon: We're creating a treasury with the treasury secretary. We know how you appoint them, how do you remove 'em? And there was one guy, Smith, I think it was Smith from South Carolina, [00:04:00] and he said, well, you know, the Constitution only provides impeachment as a means of removal. So once we appoint somebody to office.

[00:04:07] Matthew Brogdon: They're in office until they're impeached. Oh my gosh. Which was a wild idea. I mean, can you imagine It would basically mean all, all appointed offices were like 

[00:04:17] Savannah Eccles Johnston: Life tenure. Life tenure, 

[00:04:17] Matthew Brogdon: like judges, right. Tenure during good behavior. You stay in office until you're removed through impeachment. And it was such a, it would actually make, it would've made the whole executive branch kind of like a British.

[00:04:31] Matthew Brogdon: Bureaucracy, you know? Yeah. They're just sort of people sitting there for life. If anybody ever said Yes, minister, you know, it'd be like the permanent bureaucracy. 

[00:04:39] Savannah Eccles Johnston: Well, the president would matter a whole lot less. Oh yeah. So we get back to this, this idea that we're doing quality control because this person is gonna hold a big position of public trust and they're very, very hard to fire unless you go nuclear on them.

[00:04:50] Savannah Eccles Johnston: But this is interesting. At the beginning. There wasn't a whole lot of oversight being done. You weren't sending this to the committee. It was being done in the full committee. So [00:05:00] every single nomination was done on the floor of the whole committee of the Senate, so everyone was there, and this only changed me.

[00:05:08] Savannah Eccles Johnston: After the Civil War, when they began to say, okay, maybe we should send it to different committees. So we're gonna send the Secretary of Defense to the War Department or to the, uh, the Committee on Armed Services or something. They'll make the decision on this. And then only in the 20th century does it get in any way public.

[00:05:26] Matthew Brogdon: Mm-hmm. 

[00:05:27] Savannah Eccles Johnston: Before this, it's all kind of closed door kind of stuff. Closed committee sessions, closed floor senate. Now we're welcomed in hearings, public hearings, where they're being asked to come in and testify with cameras rolling. Mm-hmm. And it adds this whole new level of scrutiny, though I'm not sure we've actually gotten better at vetting.

[00:05:47] Savannah Eccles Johnston: It's just turned it into a kind of political theater. 

[00:05:50] Matthew Brogdon: Yeah. It's definitely a lot more public. It's interesting about handing it over to committees instead of the whole Senate doing it. I mean, some of that I imagine just has to be quantity. 

[00:05:59] Yeah. 

[00:05:59] Matthew Brogdon: We [00:06:00] went from, I don't know what the, the number of. PAS appointees were in the 19th century by the time we hit the Civil War.

[00:06:08] Matthew Brogdon: And PAS, meaning President and Senate. 

[00:06:10] Mm-hmm. 

[00:06:10] Matthew Brogdon: I don't know what that number was, but I'm sure it's well short of the 1200 or so we do this for now. 

[00:06:16] Right. 

[00:06:16] Matthew Brogdon: Any sense of what was going on politically whenever we started making it more public? 

[00:06:21] Savannah Eccles Johnston: I think it was just the sheer number and the need for more in-depth vetting to be done by committees who specialize on that thing.

[00:06:29] Matthew Brogdon: Okay, because I do associate the sort of progressive era, you know, the 1890s up to the 1920s with a sort of heightening of not just increased controversy in American politics. She did have, but a more public kind of controversy, 

[00:06:46] right? 

[00:06:46] Matthew Brogdon: I mean, it is part and parcel. Maybe this is part of the explanation.

[00:06:49] Matthew Brogdon: I'm gonna completely speculate here. Okay. I have no, I have no firm basis for this speculation, but I wonder. As this comes to be in the 20th century, some of this is that we begin to [00:07:00] distrust the party apparatus and the sort of institutions to handle this stuff for us. Right? And part of the case that the progressives make is actually that.

[00:07:09] Matthew Brogdon: No, the people should be involved, sort of start to finish in government, you know? Right. Including recalling people from office, removing judges if they don't like the decisions they made, getting involved in how we pick candidates. We don't want candidates picked in the smoke filled room. We kind want all of it done out in public now so that we all get to vote on it and have our say, and maybe that just gets extended.

[00:07:32] Matthew Brogdon: To office holders like, Hey, wait a minute, the president's picking a new attorney General. 

[00:07:36] Savannah Eccles Johnston: We should have a say. 

[00:07:37] Matthew Brogdon: Yeah, I wanna know what's going on there. Yeah. Uh, it's not enough for me that my representatives in Congress have sort of done this in the committee room or 

[00:07:45] Savannah Eccles Johnston: Right. Well, and that makes sense for hearings, but full committee.

[00:07:49] Savannah Eccles Johnston: Starts in 1868. Yeah, so that's interesting. Today there are over 1100 positions that require Senate approval. 

[00:07:56] Matthew Brogdon: Well, I'll say 1868 though. I mean, this is a period when [00:08:00] after the Civil War we enter a period of congressional government. 

[00:08:02] Savannah Eccles Johnston: Right. 

[00:08:03] Matthew Brogdon: When Congress really trounced the presidency. 

[00:08:05] Savannah Eccles Johnston: Yeah. 

[00:08:05] Matthew Brogdon: I mean, Congress decided we were actually in the driver's seat, a 

[00:08:08] Savannah Eccles Johnston: necessary corrective.

[00:08:09] Matthew Brogdon: We are the first branch of government, right. Uh. Dominated a few presidents there. I mean they, Andrew Johnson Johnson, but even Grant. Mm-hmm. And some of his successors, 

[00:08:20] Savannah Eccles Johnston: the no-name Presidents who have no name, because Congress is in charge. 

[00:08:23] Matthew Brogdon: That's one way to put it. Yeah. Yeah. 

[00:08:25] Savannah Eccles Johnston: Yeah. Okay. Okay. So over 1100 positions today.

[00:08:28] Savannah Eccles Johnston: Mm-hmm. That is a huge time commitment on the part of the Senate, and it will take them up to two years to do this, to get all these people confirmed. For example, there are over 500 positions that haven't even had someone nominated for yet. In the new administration, which isn't a knock against this administration, it's just that's how it is in all the administrations.

[00:08:46] Savannah Eccles Johnston: Mm-hmm. You've gotta deal with the most important people first. So, who's even included in this? You have, obviously, everyone knows the cabinet, right? The cabinet or the big ones. They've gotta get through first. But then you need every assistant secretary, every deputy [00:09:00] secretary, secretary, every single ambassador needs to be confirmed under secretaries, boards, commissions, CFOs, positions you cannot even imagine exist.

[00:09:09] Savannah Eccles Johnston: The executive branch needs to be confirmed by the Senate, and this is what each of these looks like. You need to first get a background check through both the FBI and the Office of Government Ethics, which sounds like a whole thing. And then you fill out a questionnaire for the relevant committee.

[00:09:27] Savannah Eccles Johnston: And by the way, these committees are very interesting. Over half of the nominees go to three committees in the Senate, so they've got a huge workload, just these three committees, and that's foreign relations, commerce and Homeland Security. So just those three committees together deal with half of all confirmations, which is amazing.

[00:09:44] Savannah Eccles Johnston: Okay. And then they will fill out their questionnaire. Then you'll have committee hearings, which take up anywhere from one to three days, and then you get a vote from the committee. Favorable, unfavorable, or no [00:10:00] recommendation, which doesn't happen very often. Back to the full committee, and then it's subject to the cloture process.

[00:10:06] Savannah Eccles Johnston: Though, we'll explain what happened with that in just a second. And then it goes for a full vote on the floor of the Senate. In other words, the Senate is so busy doing justice. If they did just this, just confirmations, it would take up like a year of their time. 

[00:10:20] Matthew Brogdon: Do they deal with any of them as sort of slates of people?

[00:10:24] Savannah Eccles Johnston: They do for military promotions. Okay. But, uh, ambassadors from what I understand, for example, individuals. Mm-hmm. Which is again, why these poor committees are so. We have a lot of ambassadors. We've got a lot of ambassadors, and many of those positions will stay open for longer than a year at a time because there's such a backlog.

[00:10:42] Savannah Eccles Johnston: So of course, the longest delay will be for the no names. 

[00:10:45] Mm-hmm. 

[00:10:46] Savannah Eccles Johnston: The shortest delay will be for the cabinets, but even the cabinets have had an increase in time that they have to wait for committees to do this. Which brings us to a very fair question, which is are there too many positions that [00:11:00] require Senate confirmation?

[00:11:01] Savannah Eccles Johnston: You can see the argument for the cabinet. You can see the argument for ambassadors. I guess. Do all of the under secretaries, all the deputy assistants, all of the board commissioners in fairly non-controversial areas, do they all really require Senate confirmation? Is there a way to whittle this down? I

[00:11:18] Matthew Brogdon: Oh, there certainly is. I mean, we could just, we could put more confidence in the Republican executive and the whole idea of a, a unitary Republican executive. Right. The idea there is precisely because the executive power is in one set of hands, the president and the president's elected. It means you have a responsible person who answers to the public.

[00:11:39] Matthew Brogdon: Mm-hmm. And who is, there's only one of them. They can't pass the buck, can't blame other people. Who can then make responsible decisions and you can sort of point the finger at them and go, you make stupid appointments, or you put idiots in office who do foolish things, it's all on you. So make sure you do a good job of this.

[00:11:57] Matthew Brogdon: You could definitely employ that logic and say, you know [00:12:00] what, except for the most sensitive positions, the most senior positions in the government and in our system of diplomacy. We're just gonna let the president be responsible for this right. On our behalf. You know, that would be a reasonable thing to do.

[00:12:15] Matthew Brogdon: From one perspective, it does partake of a, a really interesting logic, which I think if we resurrected like an anti-federalists opponent of the Constitution, and uh, if they were clever enough, they'd say, you know what? This is actually just a symptom of something we tried to warn you about. If you try to extend a government over too big of a territory 

[00:12:37] mm-hmm.

[00:12:38] Matthew Brogdon: It can't really be representative anymore. Right. It's going to have to be something more like Imperial Power. I mean, this was what the anti-Federalists consistently said, I. The only way to effectively govern a large territory is not through a republic. It's through an empire. 

[00:12:55] Mm-hmm. 

[00:12:55] Matthew Brogdon: A concentration of executive power.

[00:12:57] Matthew Brogdon: The kind of efficiency you get with one [00:13:00] person in charge mm-hmm. Who sort of presides over this massive structure and does it through the, the sort of mechanism of a standing army. Two. So big standing military plus a massive bureaucracy all controlled by one person. Mm-hmm. That's an empire, right? Yeah.

[00:13:18] Matthew Brogdon: And the anti-Federalists should say, it kind of helps, but not really that you elect the person. So from one perspective, this is a perfectly reasonable way to deal with increasingly complex government in a very large society. Right? On the other hand, it looks more and more like an empire and not.

[00:13:37] Matthew Brogdon: Republicanism. 

[00:13:38] Savannah Eccles Johnston: Right, which this is an unusual question for me to ask 'cause I feel like I'm constantly beating the drum of Congress, taking back power. 

[00:13:45] Mm-hmm. 

[00:13:45] Savannah Eccles Johnston: From the presidency. And yet in this one instance, you're like, well Congress, you could really let go of the reins on some of these, but there are other solutions besides just decreasing the number of Senate confirmed appointments.

[00:13:55] Savannah Eccles Johnston: Yeah. You could do that. For example, you could create a time limit in which the Senate [00:14:00] must consider. A nomination. There's currently no time limit. I think the longest open position under the Biden administration was an ambassador, which was over 400 days. So you could create a time limit. You have to do it here, but in order to have that time limit, you'd also have to fix the Senate schedule, which frankly needs to happen anyways.

[00:14:16] Savannah Eccles Johnston: Mm-hmm. So fix the number of working days in Washington. And fix the committee schedule, and you'll have to change some of the cloture rules. 

[00:14:25] Matthew Brogdon: And so this would work like the president makes a nomination, the Senate's busy, doesn't get around to it. The six month clock runs out or whatever, and person's automatically confirmed.

[00:14:37] Matthew Brogdon: No, they take office. No, I 

[00:14:39] Savannah Eccles Johnston: Well, well, I, good question. Is that how that is? I actually have no idea. I'm just spit balling here. This is just one solution. I don't know how that would work. You can't just do that because then it's a workaround for the president. 

[00:14:49] Matthew Brogdon: I was gonna say, you actually might have a constitutional problem.

[00:14:51] Savannah Eccles Johnston: Right. So how do you get the Senate to expedite the process? How do you get the Senate to be other than what it is, which is slow? Well. 

[00:14:59] Matthew Brogdon: I do [00:15:00] think, well, it is slow. I think getting the Senate to recognize that the power to confirm is not a power to control. Hmm. The fact that they get to confirm or reject appointees does not actually allow them to control those departments or those officers into the future.

[00:15:19] Matthew Brogdon: So I'm not sure that there's as much at stake in confirmation as we sometimes assume. I mean, you pointed out the quality control. The point is to keep a bad office holder out. So a confirmation power simply allows you to try to eliminate incompetent people, right, or bad actors. It doesn't do anything to tell you.

[00:15:40] Matthew Brogdon: You're getting a really good person. Fair, if that makes sense. So it's, it's entirely negative in its effect, right? All of its benefits. So maybe if we recognize that, and you sort of lower the stakes a little bit and just tell Congress like, Hey, maybe you shouldn't spend this much time on it. Maybe you should take a pass at this.

[00:15:58] Matthew Brogdon: Let a committee make a recommendation [00:16:00] and unless it looks like there's a serious problem with the person, just confirm and let's move on. 

[00:16:05] Savannah Eccles Johnston: But that puts us in the uncomfortable position of telling Congress to stop acting as partisans. This has become deeply polarized, this process. Is that your chance in a, in a hearing as a committee member from the opposing political party, is your chance to go viral on Instagram?

[00:16:20] Savannah Eccles Johnston: I. To say, oh, this is how this new president is dictatorial in this way or another. In some sense, it's not even about the nominee, although sometimes it is. It's often just about the state of American politics and kind of partisan backlash. First, do you want some proof on how long this process has gone?

[00:16:37] Matthew Brogdon: Yes. 

[00:16:37] Savannah Eccles Johnston: Okay. This is just for cabinet officials, so just for the guys who actually get confirmed rather quickly, and some of these hearings actually start before a president is even inaugurated. 

[00:16:47] Matthew Brogdon: And what's the number on this now? Cabinet offices 15. 

[00:16:50] Savannah Eccles Johnston: 15. Okay. Okay. So under the Bush two administrations, so George W.

[00:16:56] Savannah Eccles Johnston: Bush, junior Bush, it took two weeks for all of his [00:17:00] cabinet nominees to be confirmed. That has increased to three months under the first Trump administration on average nominees, cabinet nominees from Reagan to Biden. Took three times as long to get confirmed by the Senate. So an average of 69.4 days to 192 days under Biden.

[00:17:21] Savannah Eccles Johnston: 192 days. 192. Yes. A couple of other interesting things between your hearings by a committee and actually getting a vote on the floor of the Senate, which is the important part. 

[00:17:31] Mm-hmm. 

[00:17:32] Savannah Eccles Johnston: What the committee says doesn't ultimately matter. It doesn't give you your position. It's the floor vote. For Biden, it was 21 days between hearing and confirmation and for Trump.

[00:17:42] Savannah Eccles Johnston: In his first term it was 27 days. So there's even this month-long gap between hearing and confirmation. How does that happen? Well, a good part of it is just that the Senate executive calendar is so full. They've got so many of these coming through, but it's also because of very costly cloture [00:18:00] rules.

[00:18:00] Savannah Eccles Johnston: Mm-hmm. So for people who, who don't know, cloture is the way you end debate. Congress, right? You take a cloture vote, normally this is held to a 60 vote threshold. This is what we mean when we talk about the filibuster. If you don't get to 60, then debate goes on endlessly and you never get a floor vote. In 2013 though, Democrats removed that threshold.

[00:18:21] Savannah Eccles Johnston: So now it's just a simple majority to end debate. But that's a whole vote you have to do. And it takes forever to get these very old people into the Senate, uh, chambers to have each one voice vote yes or no on clocher, and then you do a second. Full vote on whether or not to actually confirm the person. So these are costly in terms of time.

[00:18:41] Savannah Eccles Johnston: It can take an hour or two or three to get everyone from whatever committee meetings they're in to do a floor vote. That's at least one of the reasons. Mm-hmm. Why is this so difficult and it's easier now than it was in 2013. 

[00:18:53] Matthew Brogdon: I had no idea. It was quite that lengthy for cabinet officers. 

[00:18:56] Savannah Eccles Johnston: Isn't that amazing?

[00:18:57] Matthew Brogdon: Although, I mean, there are exceptions to this, right? I mean, [00:19:00] Congress or the Senate expedites certain cabinets. Position, right? Yes. Yes. So, there is a little bit of triaging here. There's this, yeah. The big 

[00:19:07] Savannah Eccles Johnston: ones 

[00:19:07] Matthew Brogdon: There is sort of like, how badly do we need a transportation secretary? 

[00:19:12] Savannah Eccles Johnston: Yeah, exactly. I mean, will 

[00:19:15] Matthew Brogdon: the train stops running on time if there's no transportation secretary for the next, right.

[00:19:20] Matthew Brogdon: It's like under Biden, like, where's Mayor Pete? Then, you know, the place is gonna shut down. So there is a little bit, I mean, Congress does a little bit of self-policing on this. I would actually be quite curious if the Senate has. I guess I sort of dared to hold out on a really essential position here.

[00:19:38] Matthew Brogdon: We're talking about defense, justice, the Attorney General. Mm-hmm. And actually not cabinet positions here. It seems like this list really involves, especially national security and law enforcement. 

[00:19:50] Savannah Eccles Johnston: Well, let's look at what's already been confirmed. We're recording this February 3rd. 20. 20. 23rd. 20. So for this new administration, you're totally right.

[00:19:59] Savannah Eccles Johnston: The big [00:20:00] ones have been filled. You've got, uh, he's got over at Defense, you've got Rubio at State. You've done the Attorney General randomly, Doug Bergham and Interior have gotten through. 'cause I guess that's important. You don't have a director of National Intelligence, which is a big one. Intelligence kind of role, but that's very controversial.

[00:20:19] Savannah Eccles Johnston: But yeah, you do kind of triage the big ones first. I mean, treasury is through, that's done 

[00:20:23] Matthew Brogdon: in all fairness. There is part of the intelligence community that thinks the d and I is kind of a, 

[00:20:27] Savannah Eccles Johnston: So maybe you could wait on that one waste. It's like a transportation secretary, we don't need you right now. 

[00:20:32] Matthew Brogdon: Yeah.

[00:20:32] Matthew Brogdon: Well, they don't actually do any intelligence work. They're just supposed to sort of collate everything that's going on. I sometimes wonder, what does the DNI really do? I mean, they just actually sit in an office and sort of receive reports from all these. 

[00:20:46] Savannah Eccles Johnston: Yeah. Well, my answer is I have no idea. I have no idea what this person does nor do I do day to day, but, uh, I don't know.

[00:20:53] Savannah Eccles Johnston: They have a fancy name. 

[00:20:54] Matthew Brogdon: And this is the, it trumps proposed that Tulsi Gabbard. 

[00:20:58] Savannah Eccles Johnston: Tulsi Gabbard. This is Tulsi Gabbard [00:21:00] position, 

[00:21:00] Matthew Brogdon: this role. Right. 

[00:21:00] Savannah Eccles Johnston: Some of the more controversial ones are actually for kind of smaller 

[00:21:03] Matthew Brogdon: Yeah. 

[00:21:04] Savannah Eccles Johnston: Positions, right? Health and human services. Which brings us to the question of partisanship.

[00:21:08] Savannah Eccles Johnston: How partisan does this process get? Is that actually new in any sense that this process gets partisan? 

[00:21:15] Matthew Brogdon: Well, also a question, is it like a problem that it's partisan? I mean, surely it is though. There are these interesting dynamics. I mean, if it was sheer, if it was pure partisanship in the sense of like, uh, we just wanna ruin the chances of the president.

[00:21:30] Matthew Brogdon: I mean, assuming you're, you're in congress president's in the other party. Pure partisanship would say, you just wanna do whatever you can to tank the other guy's chances. Right. Make him look as bad as possible. Right. It doesn't seem like that's the whole story with what goes on, in part because people do come through or widely respect.

[00:21:51] Matthew Brogdon: I mean, Rubio was confirmed as Secretary of State, 99 to nothing. 

[00:21:57] Yeah. 

[00:21:57] Matthew Brogdon: By the Senate. He breezed [00:22:00] through. Part of that was 'cause he was a senator. Right. So this is an interesting thing. When someone is appointed, who's a member of Congress, there's actually this weird set of norms that kick in. Yeah. Where you kind of have to be more nice to them.

[00:22:16] Right. 

[00:22:16] Matthew Brogdon: You kind of have to expedite things. You're not allowed to look too closely at them, you know. Right. Sort of embarrassing details. Rubio really benefited from this, not only because he had been in the Senate, but also because he was just well liked. Right. And so it does seem to me like there is a way to transcend partisanship.

[00:22:34] Savannah Eccles Johnston: Right. No, that's very true though. Each president of the 21st century has at least one nominee. I. Not rejected by the Senate, but uh, withdrawn. 

[00:22:42] Yeah. 

[00:22:43] Savannah Eccles Johnston: By the president because they were going to fail. 

[00:22:45] Right. 

[00:22:46] Savannah Eccles Johnston: So it has literally always been partisan. Here's some examples. Jackson will have a Tanny mm-hmm.

[00:22:54] Savannah Eccles Johnston: Will be his nominee for treasury secretary. Mm-hmm. He'll be rejected on, uh, [00:23:00] grounds that, uh, policies that he had supported previously that the, uh, Congress didn't like. 

[00:23:05] Matthew Brogdon: This was getting, trying to get the Senate to confirm him after he had been appointed as a recess. Yeah. Yeah, exactly. Appointee, right, right.

[00:23:11] Matthew Brogdon: Okay. 

[00:23:12] Savannah Eccles Johnston: Which does kind of rankle him a little bit. Yeah. Because 

[00:23:14] Matthew Brogdon: Jackson had fired the treasury Secretary Yes. And then put Tony in his place. Yes, 

[00:23:18] Savannah Eccles Johnston: yes. And 

[00:23:19] Matthew Brogdon: then Senate said. No, we don't think that's how this is gonna work. 

[00:23:22] Savannah Eccles Johnston: Yeah, yeah. So it's more about a power play. Then you get Tyler who has all of his nominees for treasury, Navy, and war rejected in 1841.

[00:23:31] Savannah Eccles Johnston: And I think maybe they just didn't like the guy. They were upset with the power of the executive at the time. It's not until you get Coolidge in 1925, though, that we have the first nominee for a cabinet secretary of the same party as the majority party in the Senate. Be rejected. 

[00:23:47] Matthew Brogdon: Really? 

[00:23:47] Savannah Eccles Johnston: Yes. 1925 

[00:23:49] Matthew Brogdon: I, that surprises me, which 

[00:23:50] Savannah Eccles Johnston: again shows you partisanship was always part of it.

[00:23:54] Savannah Eccles Johnston: It's always been there. So to be said, it's the same party. That's the first time it's rejected. 

[00:23:59] Matthew Brogdon: [00:24:00] Usually your hand rings. I Congress giving up, its 

[00:24:05] Savannah Eccles Johnston: mm-hmm. 

[00:24:05] Matthew Brogdon: Sort of institutional, 

[00:24:07] Savannah Eccles Johnston: yeah. 

[00:24:07] Matthew Brogdon: Pride and identity 

[00:24:08] Savannah Eccles Johnston: handing makes it sound like I'm not Right. But 

[00:24:11] Matthew Brogdon: I'm not saying you're not right. I, I do. You should I, I do a lot of hand wringing over many important things.

[00:24:16] Matthew Brogdon: Is this working in the other direction? That is. Congress used to just defer. To the executive branch about this sort of thing and didn't really ask too many questions. And is this one area where Congress has said, you know what? We're not gonna take your word for it. We're gonna really do our job here.

[00:24:34] Savannah Eccles Johnston: Yeah. I think it is one of those rare examples, and I don't think it's necessarily motivated by that so much as the political theater hearings offer. 

[00:24:41] Okay. 

[00:24:41] Savannah Eccles Johnston: I think it's about personal political ambitions. I mean, this is just my theory. I think it plays into a senator's personal political ambitions in a way that pre-hearing nominations did not 

[00:24:53] Matthew Brogdon: do public hearings add anything important.

[00:24:57] Savannah Eccles Johnston: No, I don't think anything useful has ever been learned in a [00:25:00] public hearing. It's truly just a show, I think at this point. 'cause most of them are so trained to give a non-answer to something. So you're gonna learn more in the questionnaires that they'll submit than you will in an actual public hearing. I think it's more about the person asking the question.

[00:25:15] Savannah Eccles Johnston: If you notice anything that goes up on Instagram or YouTube, it's not the face of the person coming to testify. It's the face of the senator asking the question. Oh, that's funny. That's on the camera. 

[00:25:26] Matthew Brogdon: No, I hadn't thought about that, but it is true. Yeah. Every time there's some viral thing about Heg Seth's nomination fight, uh, or confirmation fight.

[00:25:36] Matthew Brogdon: It's, you know, someone else's face, not his. 

[00:25:39] Savannah Eccles Johnston: Right. 

[00:25:40] Matthew Brogdon: So, I mean, there are exceptions here. I think occasionally the nominee manages to say sufficiently explosive things that they Oh, for sure get the headline. But, 

[00:25:50] Savannah Eccles Johnston: um, that's true. 

[00:25:51] Matthew Brogdon: You know, Rubio waxed eloquent. I think, you know, Kennedy's. Confirmation hearing, RFKs confirmation, hearing [00:26:00] produced a number of 

[00:26:01] Savannah Eccles Johnston: that's really 

[00:26:01] Matthew Brogdon: thrilling sound bites, 

[00:26:03] Savannah Eccles Johnston: right?

[00:26:03] Savannah Eccles Johnston: He did kind of steal some of the limelight away from the senators, which is very rude. So this brings us back to the idea of checks and balances, which is, this might be one of the few checks that they set. It is actually more actively pursued than they did before. And for reasons of maybe just pure ambition, which takes us right back to the federalist.

[00:26:24] Savannah Eccles Johnston: We'll, uh, counter ambition with ambition in some sense. But we shouldn't expect to see hearings get any less controversial in the future, though. Hopefully they will become more expedited. 

[00:26:33] Matthew Brogdon: But that's a bit of a problem because that means that Congress is getting more passionate, senators getting most passionate about a thing that involves it in the executive branch.

[00:26:45] Matthew Brogdon: You know, confirmations are not legislative functions. Nope. In this case, the Senate is just being used. As a backstop, as a pure check, right? This is not normally your job deciding [00:27:00] who the secretary of state is. Not really a legislative function, but we're just employing you as a kind of referee to make sure that you are a babysitter to make sure that the executive branch doesn't get out of line.

[00:27:14] Matthew Brogdon: If that's the case, then it's a little bit of a problem that Congress gets super excited about that while it's busy neglecting it. Lawmaking. 

[00:27:24] Savannah Eccles Johnston: Yeah. Well I was trying to find silver linings here, in the health of checks and balances today. So that's a good point. That's, uh, a potential silver lining is they're getting interested in something, even if it's not their actual primary constitutional function.

[00:27:41] Savannah Eccles Johnston: But, uh, it will continue to be partisan. I do think there is a movement, though, to expedite the process or to reduce the number of political appointees. 

[00:27:51] Matthew Brogdon: It wouldn't be a bad idea, and just taking the TV cameras out would be a bad idea 

[00:27:54] Savannah Eccles Johnston: or just taking the TV cameras out and watching what that does for the calendar.

[00:27:57] Savannah Eccles Johnston: I wonder if you just take the cameras out, how [00:28:00] quickly things would speed up. Well, we'll have to look back at these numbers again. Once the confirmations for the cabinet are actually done, I. here in a month or two. But for now, I think, uh, I think we've figured out executive confirmations, 

[00:28:14] Matthew Brogdon: The Constitution is more than parchment under glass at the National Archives.

[00:28:18] Matthew Brogdon: It's a blueprint for American self-government that shapes every part of our civic life from the rights we cherish to the laws we live under. We explore the ongoing battle over the meaning and relevance of America's founding document. This Constitution will equip you to engage the most pressing political questions of our time.

[00:28:39] Outro: Join us every two weeks as we hash out constitutional questions together. This podcast is ordained and established by the Center for Constitutional Studies at Utah Valley University, the home of Utah's Civic Thought & Leadership Initiative.