Control without Confirmation: The Politics of Vacancies in Presidential Appointments

Abstract

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.

Appointee vacancies in US executive branch agencies

“…Thus, we include President-Agency Ideological Divergence (P). At the same time, the apparent need for responsiveness through appointments can be attenuated if careerists' ideological and programmatic proclivities align with the president's without the stimulus of appointed loyalists (Resh 2014) or if presidents seek policy retrenchment (Kinane 2019). Given these differentiating reasons for strategically choosing to leave an appointee position vacant, we did not propose formal hypotheses for P. 20 Nonetheless, its consideration is necessary for any model of appointee vacancies.…”

“…Vacancies are rarely observed empirically, in contrast to confirmation and length of tenure, because appointee departure is not in the Senate record and not publicly available (except for coverage during the first year of an administration). Hollibaugh and Rothenberg (2017), Kinane (2019) and O'Connell (2009, 2020 are recent exceptions to the dearth of empirical scholarship on vacancies. The obscurity of data results from rules governing information about appointee departure and positions vacancies, which are themselves shaped by generations of bargaining.…”

“…On this point, Hollibaugh (2015) reports that nomination delay is extended when a president's vetting process finds that the candidate is relatively incompetent compared to a pool of potential nominees. Kinane (2019) adds that presidents may strategically leave positions vacant, especially when presidents prioritise retrenchment in that agency's policy aegis.…”

The Pivotal and Distributive Politics of Senate‐Confirmed Appointee Vacancies

“…Scholars debate the extent to which presidents use appointments as patronage, purely in return for political support, compared to the extent to which presidents seek out qualified appointees with the policy and managerial expertise required to fulfill their agency's mission (Krause and Hollibaugh 2021;Krause and O'Connell 2019;Rottinghaus 2010). In practice, presidents do both (Hollibaugh 2018), and in either case presidents might seek to fill appointed positions quickly or not at all, contingent on their own relationship with agencies and the political capital they seek to spend on confirmations (Kinane 2021).…”

“…There is an ongoing debate as to the importance of party label in explaining legislators' voting decisions, particularly for agency leadership appointments (Resh et al 2021). Kinane (2021) argues that presidents may strategically prefer vacancies over spending the political capital necessary for confirmation. For a thoughtful discussion and test of the argument on party label to congressional voting decisions, generally, see Binder, Lawrence, and Maltzman (1999, 815-31).…”