THE WHITE HOUSE TRANSITION PROJECT 1997-2021

Smoothing the Peaceful Transfer of Democratic Power

i

REPORT 2021-55

THE “NUCLEAR OPTION” HAS FIZZLED…AGAIN Here’s Why and What to Do About It

Heather Ba, Christian Cmehil-Warn, and Terry Sullivan, The White House Transition Project

Smoothing the Peaceful Transfer of Democratic Power

For the White House Transition Project For the Kinder Institute on Constitutional Democracy http://whitehousetransitionproject.org https://democracy.missouri.edu/ Martha Joynt Kumar, Director (202) 285-3537 Justin Dyer, Director (416) 832-2121 Terry Sullivan, Exec. Director (919) 593-2124

WHO WE ARE & WHAT WE DO

The White House Transition Project. Begun in 1998, the White House Transition Project provides information about individual offices for staff coming into the White House to help streamline the process of transition from one administration to the next. A nonpartisan, nonprofit group, the WHTP brings together political science scholars who study the presidency and White House operations to write analytical pieces on relevant topics about presidential transitions, presidential appointments, and crisis management. Since its creation, it has participated in the 2001, 2005, 2009, 2013, 2017, and now the 2021. WHTP coordinates with government agencies and other non-profit groups, e.g., the US National Archives or the Partnership for Public Service. It also consults with foreign governments and organizations interested in improving governmental transitions, worldwide. See the project at http://whitehousetransitionproject.org The White House Transition Project produces a number of materials, including:

WHITE HOUSE OFFICE ESSAYS: Based on interviews with key personnel who have borne these unique responsibilities, including former White House Chiefs of Staff; Staff Secretaries; Counsels; Press Secretaries, etc. , WHTP produces briefing books for each of the critical White House offices. These briefs compile the best practices suggested by those who have carried out the duties of these office. With the permission of the interviewees, interviews are available on the National Archives website page dedicated to this project:

*WHITE HOUSE ORGANIZATION CHARTS. The charts cover administrations from Ronald Reagan to Barack Obama and help new White House staff understand what to expect when they arrive and how their offices changed over time or stayed the same.

*TRANSITION ESSAYS. These reports cover a number of topics suggested by White House staff, including analyses of the patterns of presidential appointments and the Senate confirmation process, White House and presidential working routine, and the patterns of presidential travel and crisis management. It also maintains ongoing reports on the patterns of interactions with reporters and the press in general as well as White House staffing.

*INTERNATIONAL COMPONENT. The WHTP consults with international governments and groups interested in transitions in their governments. In 2017 in conjunction with the Baker Institute, the WHTP hosted a conference with emerging Latin American leaders and in 2018 cosponsored a government transitions conference with the National Democratic Institute held in November 2018 in Montreal, Canada .

Earlier White House Transition Project funding has included grants from the Pew Charitable Trusts of Philadelphia, Pennsylvania and The Moody Foundation of Galveston, Texas. The Kinder Institute on Constitutional Democracy. A central element of the University of Missouri’s main campus in Columbia, Missouri, the Kinder Institute on Constitutional Democracy prepares students for lives of thoughtful and engaged citizenship by equipping them with knowledge of the ideas and events that have shaped our nation’s history. https://democracy.missouri.edu .

© The White House Transition Project, 2001- 2021

Smoothing the Peaceful Transfer of Democratic Power

TABLE OF CONTENTS

WHO WE ARE & WHAT WE DO II

EXECUTIVE SUMMARY 1

ANALYZING THE NUCLEAR OPTION 1 The Appointments Process 2 The Data 2

THE RESULTS ABOUT DELIBERATIONS 3 Table 1. Pace of Senate Deliberations for Judicial Nominees 3 Figure 1. Boxplots of Senate Processing Times for Judicial Nominations 4

HOW WE EXPLAIN THE FIZZLE 4 If Not a Nuke, then What? 6

ABOUT THE AUTHORS 8

THE WHITE HOUSE TRANSITION PROJECT 1997-2021

Smoothing the Peaceful Transfer of Democratic Power

i

REPORT 2021-55

THE “NUCLEAR OPTION” HAS FIZZLED…AGAIN Here’s Why and What to Do About It

Heather Ba, Christian Cmehil-Warn, and Terry Sullivan, The White House Transition Project

EXECUTIVE SUMMARY

This report analyzes the nominations of two presidents for which the Senate has deployed the so-called “nuclear option,” exempting judicial nominations from the Senate filibuster process. In both instances (for Presidents Obama and Trump), the Senate leadership intended this rules change to speed up deliberations. But in both cases, it has made deliberations slower. We demonstrate this effect and then try to explain how this has happened. Our explanation, that the nuclear option fails to address normal Senate opportunism leads to a series of recommendations mostly about preparing a new administration for its responsibilities in appointments and the Senate for handling many more nominations during the early days of a new administration.

THE WHITE HOUSE TRANSITION PROJECT 1997-2021

Smoothing the Peaceful Transfer of Democratic Power

i

REPORT 2021-55

THE “NUCLEAR OPTION” HAS FIZZLED…AGAIN Here’s Why and What to Do About It

Heather Ba, Christian Cmehil-Warn, and Terry Sullivan, The White House Transition Project In 2013, during the 113th Congress, the Senate majority temporarily deployed what some have called

the “nuclear option,” purportedly to break a confirmation logjam over President Obama’s judicial nominees. The Senate majority argued then that the 60-vote threshold embedded in the filibuster process allowed the minority to obstruct nominations, and thereby thwart the Obama agenda, both of which would otherwise receive majority support. So the majority exempted judicial nominations (along with some low-level executive positions) from the filibuster, ultimately reducing the number of votes needed for confirmation to a simple majority. The change expired two years later. In spring of 2019, the Senate majority revived the same rule change ostensibly to accomplish the same objective in the face of the same obstruction.1 This second time around, though, the two parties reversed their roles. As had the presidency.

Understanding this reform’s impact affords an insight into how the appointments process performs. The appointments process represents a critical transition between the general election outcome and the policy process that the election in-part defines. While deploying this parliamentary reform has so-far focused on judicial nominations, these nominations present a microcosm of the larger process. Controlling the judiciary and its policy-making represents a keystone strategy in preserving minority policies not otherwise feasible through the ballot. Additionally, analyzing the effectiveness of this rule change sheds light on whether partisan strategies can solve governance problems created in-part by partisan polarization.

Both scholars and Senate leaders blame that partisan polarization (what pundits characterize as “tribalism”) for the slowdown in the appointments process. Evaluating the nuclear option provides a window into whether partisan tactics resolve or exacerbate the problem, and whether other factors contribute to the longer deliberations.

So, how has deploying the nuclear option worked out? Simply put, it has made things worse. Here’s how we can tell…

ANALYZING THE NUCLEAR OPTION

If deploying the nuclear option in the appointments process blunts minority obstruction and tribalism, then its application in practice should shorten deliberations. If, instead, the reform doesn’t reduce deliberations, then bludgeoning the minority in this way would actually constitute just another version of majority abuse, contributing to tribalism rather than ameliorating it.

As it turns out, political scientists know a fair amount about what really affects appointments. We have both theoretical and empirical models of what affects deliberations in each stage of the presidential appointments process.2 Although some of our data extends back to the early 1900s, complex research

1Burgess Everett, “Republicans Trigger ‘nuclear option’ to Speed Trump Nominees,” Politico, April 3, 2019:

https://www.politico.com/story/2019/04/03/senate-republicans-trigger-nuclear-option-to-speed-trump-nominees-1253118.

2 See Heather Ba, Brandon Schneider, and Terry Sullivan, 2019, The Longer You Wait, the Longer It Takes: Presidential Transition Planning and Appointment Politics, Washington: The White House Transition Project.

2 The Nuclear Option Has Failed

For the White House Transition Project For the Kinder Institute on Constitutional Democracy http://whitehousetransitionproject.org https://democracy.missouri.edu/ Martha Joynt Kumar, Director (202) 285-3537 Justin Dyer, Director (416) 832-2121 Terry Sullivan, Exec. Director (919) 593-2124

models rely primarily on data from the last six presidencies, when we can detail both the executive and Senate processes and when presidential appointments must factor in major ethics and transparency reforms first applied to President Reagan. We rely on data derived from the White House Transition Project (WHTP), a scholarly endeavor intending to improve practices associated with the smooth transfer of democratic power. The WHTP data collections coincide with this Reagan era reform.3 To assess the nuclear option, we have analyzed all relevant judicial nominations by Presidents Obama and Trump.

THE APPOINTMENTS PROCESS

We considered deliberations in all four stages of the appointments process. In the Executive stage, the president’s staff first identifies potential nominees — typically, leading to an announcement of the President’s “intent to nominate” — and then investigates their qualifications. The White House Counsel’s office coordinates investigations carried out by a number of agencies, including the FBI and the Office of Government Ethics. The overall executive process ends with the submission of the nominee’s credentials to the Senate. In the Senate, committees vet nominees (often using their own investigators and forms) and then the full Senate disposes of them via a floor vote.

As it turns out, for the last half a century at least, the Senate has confirmed all nominees brought to a floor vote. Failed nominations, therefore, don’t occur on the floor but instead die in a whimper when nominees drop into “appointment limbo,” languishing in committee or on the Senate’s calendar or quietly withdrawn by the administration. In some cases, these nominations will have languished for a long time, only terminating when the Senate suspends its work (at a recess) or when the congressional session ends. The Senate then returns these languishing nominations to the President under its Rule 31(§5; §6), which bars the Senate from further considering languishing nominations whenever the Senate has suspended its business for longer than 30 days. These languishing nominations occur alongside another set of other nominees presented to the Senate within a couple of months of a Senate break, most often at the end of session, affording them little opportunity for normal consideration. Often, the administration offers up these late nominations as a symbolic act with no intent of reissuing them once the Senate returns them.

THE DATA

We divide the president’s “active” nominations into three groups: 1. Before — nominations reported from committee and confirmed before the nuclear

deployment in each administration (before 11/21/2013 for Obama and 4/14/2019 for Trump)

2. Changeover — nominations reported from committee but not confirmed before the nuclear option and then confirmed afterward

3. After — nominations reported from committee and considered on the floor entirely after deployment of the nuclear option

We focus on comparing groups 1 and 3. Those favoring the minority abuse story and responding with the nuclear option suggest the length of deliberations in the committee and on the floor should appear significantly shorter for group 3 than group 1. And since the nuclear option creates a new ecology, this diminishing effect should appear in the relationship between committee and floor deliberations, in the floor deliberations themselves, and in the total number of days in the Senate. Because the Changeovers represent this kind of no-man’s land between normal and nuclear, these nominations defy simple expectations.

3 For President Trump, the data included all nominations to date in his first term. For President Obama, we included all

nominations in the 113th Congress.

Smoothing the Peaceful Transfer of Democratic Power 3

THE RESULTS ABOUT DELIBERATIONS

Table 1 presents our results, along with the basic statistical comparisons illustrated in Figure 1. Among those results, note that between groups 1 and 3, deliberations for group 3 (after deploying the nuclear option) took longer for both presidents. For Obama’s nominees, the nuclear option increased average deliberations for Obama nominees by two days on committees and nearly 20 days longer for Trump’s nominees. Though the increased delay for Obama nominees does not statistically differ from no change, the dramatic lengthening of deliberations for Trump nominees after deployment, from 72.7 to 92.2 days, does amount to a statistically significant deterioration (t = -2.7, df = 200.6, p-value = 0.010). Hence, for committee deliberations, deploying the nuclear option mostly made things worse, not better.

Table 1. Pace of Senate Deliberations for Judicial Nominees

Length of Senate Stage (in days) Nuclear Option Committee Floor Vote Senate Total

Groupings Obama Trump Obama Trump Obama Trump

1. Before 68.8 72.7 61.6 93.7 130.4 166.4 2. Changeover 131.0 25.0 90.5 119.8 221.5 134.8 3. After 70.8 92.2 73.8 84.4 144.6 176.6

Source: Compiled and calculated by authors, data from whitehousetransitionproject.org. Notes: *The sample sizes for group 3 differ in the committee and floor stages because we exclude (rather

than treat as failures) those nominees the Senate majority leaves in limbo: languishing in committee or on the Senate calendar.

The pattern for floor deliberations after deployment looks the same. For Obama’s nominees, the

final floor deliberations took 12 days longer after deployment, a significant change for the worse (t = -1.96, df = 92.02, p-value = 0.052). For Trump’s nominees, even though the waiting times for a floor vote decreased by 9 days, this change is not statistically significant. For floor deliberations, deploying the nuclear option mostly made things worse, not better.

In neither presidency did the nuclear option shorten the overall length of Senate deliberations. Instead, it actually lengthened the process by an additional 10 days for each president. The parliamentary reform fizzled.

Here’s what we think has happened…

4 The Nuclear Option Has Failed

Figure 1. Boxplots of Senate Processing Times for Judicial Nominations

Committee Deliberations Floor Deliberations

HOW WE EXPLAIN THE FIZZLE

Following the invocation of the nuclear option in April 2019, we speculated that its deployment would likely have little effect.4 We reached this conclusion because ours and others’ research has described an appointments process affected by more than the partisan polarization that both administrations complained about when describing their appointments mess.5 Tribalism doesn’t just cause problems, it also reflects them, just like lengthening deliberations do. Targeting polarization, as this reform has, affords a clear indication of how much polarization contributes to or just reflects that mess. That deploying the nuclear option produces longer deliberations rather than truncating them suggests maybe something else has driven the problems in appointments.

To understand the appointments quagmire, we have suggested focusing on the role of “opportunism,” the complex relationship affecting how focus yields leverage when limited time plays a role. We suggest this approach because it has the advantage of applying to both the executive as well as the senatorial process. Wider applicability represents an advantage because the executive stage represents by far the longest set of deliberations in the appointments process, taking four times longer than the Senate.

4 Heather Ba and Terry Sullivan, 2019, “Why Does it Take So Long to Confirm Trump’s Appointments? The Senate ‘went nuclear’

— but that won’t speed things up much,” The Washington Post — Analysis, (April 24). 5 Of course, polarization could plausibly explain how the nuclear option fizzled: its deployment merely encouraged a more

committed minority to redouble its obstruction. That attacking polarization itself would only motivate a more partisan solution, in turn only worsening partisanship not repairing it, should itself recommend a search for other forces driving appointments politics that, in turn, would suggest more effective, non-partisan repairs.

Trump

Obama

Smoothing the Peaceful Transfer of Democratic Power 5

This fact alone suggests that a procedural reform focused only on the final and shortest Senate stage, floor deliberations, would likely have little to no effect on the overall duration of deliberations. Primarily, we argue that the realities of policy-making create opportunities for delay in both parts of the appointments process.

Because the Executive branch has just one principal decision-maker, presidential time constitutes an obviously valuable asset. Without extraordinary coordination and planning, a presidential commitment to one thing precludes commitments to anything else. Addressing a challenging agenda or responding to urgent policy needs means the president and key staff have less time for focusing on standing up the governing apparatus.6 Urgent policy matters can squeeze out properly identifying and vetting candidates. Such opportunism in the executive undermines the quality of nominees, which in turn sets the stage for problems in the Senate processes. When presidents do not identify quality nominees, nor vet them properly, nor send them to the Senate in a targeted and timely manner, those nominees can languish either because Senators or the public discover those nominees’ flaws, which themselves then become distractions. Such nominees also present opportunities to bargain for support on other issues, especially as Senators and the administration’s potential advocates turn their attention to policy-making and have less time for further negotiations. Once the policy-making process begins, appointments that become enmeshed in these negotiations get sidelined. The deployed nuclear option failing to directly address this sort opportunism would suggest the need for a different strategy to speed deliberations, one that eliminates the distraction of pending policy. Perhaps, the combination of these two facts explains why Majority Leader Mitch McConnell recently precluded other legislative business in favor of only approving judicial nominees.7

We conclude, therefore, that unless an administration and Senate majority focuses on nominations early, before the policy-making process begins, the nuclear option would only worsen and not alleviate the delays in the appointments process. The data from Table 1 support these conclusions about the failure of the nuclear option. But the broader data on appointments also suggests a more positive conclusion with respect to opportunism. During the early months of a new administration, when the Senate typically has little else to do but receive, vette, and confirm nominations, presidents normally succeed wildly. The Senate typically approves nominations submitted within the first 100 days of a new administration 48 days faster than those submitted later.

The experiences of the last three presidential administrations illustrate just this effect that executive management and focus has on appointments politics. Before the presidential campaign began, Governor George W. Bush appointed a dedicated transition planning team. That team used its early start to learn in detail how they could organize the appointments process, going so far as to restructure and downsize the White House Personal Data Statement and to create a new electronic application system for appointments, which built a database of potential applicants and their qualifications. Consistent with this advanced planning and emphasis on coordination, the Bush transition team successfully named its critical White House staff a full eleven days earlier than the typical presidential transition putting it in a position to take advantage of its plans. In the end, the Bush White House took 199 days on average, from the date of the election, to identify and vet nominations, including those for the judiciary, a full 60 days less than his predecessors had or his successors would. Meanwhile, the Bush team proffered a straightforward, Republican policy agenda, setting only a modestly challenging number of issues before the Congress. Organization and advanced preparations in both areas, standing up the government and setting its course, paid off.

Following Bush’s example, the Barrack Obama team had a largely successful transition effort, but its transition team focused almost exclusively on two extraordinary and simultaneous policy challenges (a general financial collapse and adoption of a universal health care system). They had little opportunity to develop an early appointments strategy.8 Reflecting this lack of attention, President-elect Obama placed appointments in the hands of a staff who didn’t want the job, who came on board late, and who quit 6 On these challenges, see The White House Transition Project, Report 47: A Compendium of Early Assessments, particularly, Terry

Sullivan, 47B — Presidential Routine During the First 100 Days, Washington: The White House Transition Project, 2017. 7 See Allison Durkee, “Coronavirus Can’t Stop Mitch McConnell From Forcing Trump’s Judges Through the Senate,” Vanity Fair, 5/1/2020. 8 See https://www.rollcall.com/news/congress/unsuitable-before-the-election-trump-gets-obamas-judges-on-the-bench

6 The Nuclear Option Has Failed

almost immediately. The Obama personnel operation stumbled through its early days, gave up, then refocused but having missed its opportunities would never really recover.

Donald Trump came to his personnel problems even more quickly than had Obama, firing the entire transition team three days after the election. After the “Saturday massacre,” the personnel team that Trump put in place had no experience with the government’s stand up or the campaign’s previous plans: of the seven early personnel staff, only one had any previous experience with appointments and she took on a limited, technical role. Subsequent to this poor beginning and probably because of it, several of Trump’s judicial nominations produced revealing flaws accompanied by considerable, negative press coverage.9 While he has nominated roughly the same number of judicial nominees as his predecessors (e.g., submitting 229 in his first two years), President Trump withdrew four times as many judicial nominees during consideration as Obama and failed to resubmit another 28 nominations after the Senate used its rules to return them to him.

Faced with these disheveled executive operations, deploying a nuclear option may have seemed like the only strategy available to both sets of Senate leaders. But, because the nuclear option addressed none of the executive management issues that created the delays in the first place, no surprise that it has proven so ineffective. We suggest that deploying the nuclear option has failed because it simply didn’t engage the responsibilities of effective leaders — planning, structuring agendas, making accommodations in those agendas, and scheduling — that would create the context in which Senators might avoid opportunism. Our initial skepticism about the effectiveness of the nuclear option was rooted in this understanding of appointments politics. So far, our hunch seems correct.

If Not a Nuke, then What? If a nuclear deployment does not address the underlying problems and maybe exacerbates them, what

route might leaders take in the next transition and in the next stand-up of the national government? We suggest seven changes, most of which rest on the notion of avoiding opportunism by early preparation. Four reforms focus on a fast start to appointments derived from expanding transition capacities in the campaigns and in the Senate. For example, campaigns normally learn about appointments from their “landing teams,” agency specific and typically policy driven groups looking to dominate on a policy outcome following the election. Or they learn about appointments from the Plum Book, the joint congressional-executive publication describing all PAS appointments but published four years earlier or available only after the election. Neither source provides timely information that would guide preparations for the operational necessities of the national government. The influence of these two conditions over the process either encourages policy commitment over administrative competence or offers a picture of the personnel challenges four years in the past. We suggest a more timely production of the Plum Book earlier in the campaign to apprise the transition planners of their immediate challenges. We suggest prioritizing operational responsibilities over ideological commitment, assuming that for many positions in governing getting the position secured early aids the administration more than achieving some ideological purity.

We also suggest a number of changes that increase resources to the early stages of the appointments process with the aim of standing-up earlier a national government’s critical personnel and taking advantage of the early absence of a demanding policy agenda. We propose that the executive set an objective of offering 400 nominations by the end of the first 100 days. To handle these nominations, we propose that the Senate increase temporary staffing levels on committees before the election so that they can process a larger number of these early nominations. We also propose creating a new apparatus in the Executive Office of the Presidency to manage presidential Personnel similar in stature and operation at the Office of Management and Budget, supported by a standing professional staff, and managed by the White House staff. We also suggest highlighting that the 400 initial nominations should include a significant number of positions that have in the past resulted in confirmations by greater than 60 votes. Affording the Senate an opportunity to confirm nominees by extraordinary majorities will beat back nascent tribalism.

For the Senate, we suggest establishing in its standing rules a timetable for the Senate committees and party leaderships to coordinate appointment preparations with the national campaigns and their 9 See http://nymag.com/intelligencer/2019/10/pitlyk-is-trumps-latest-unqualified-judicial-nominee.html and

https://www.nytimes.com/2019/10/30/us/trump-appeals-court-nominees.html.

Smoothing the Peaceful Transfer of Democratic Power 7

transition planners. Such a change would mirror steps taken in the executive agencies under the Kaufman-Leavitt Presidential Transition Act of 2015.10 But in the Senate, such a procedure would require both parties to coordinate on appointments, without knowing the results of the election, again suppressing tribalism in much the same way that in 2012, the Senate leaders coordinated a reduction in the numbers of PAS positions, unilaterally transferring them to the president’s exclusive control. The totality of these suggested changes would strengthen efforts in appointments by shifting some concentration to those bi-partisan positions critical to the national administration and restructuring some of the attention paid to those appointments most closely associated with the new administration’s policy ambitions.

10 See Martha Kumar’s Rules Governing Presidential Transitions: Laws Executive Orders, and Funding Provisions, White House Transition

Project Reports #2017-05, Washington: White House Transition Project. Also at http://whitehousetransitionproject.org/transition-resources-2/transition-essays/

8 The Nuclear Option Has Failed

ABOUT THE AUTHORS

Heather Ba is Assistant Professor of Political Science, The University of Missouri at Columbia and Research Coordinator for the White House Transition Project

Christian Cmehil-Warn is a Kinder Institute Fellow at the University of Missouri at Columbia Terry Sullivan is Executive Director of The White House Transition Project and emeritus faculty in Political

Science, The University of North Carolina at Chapel Hill