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Our 44th president will inherit not only unprecedented economic and security challenges but also a broken federal appointments process. More than 200 high-level federal executive, regulatory and court vacancies threaten the government’s proper functioning. Top-level vacancies exist at the Federal Reserve, the Securities and Exchange Commission, the Council of Economic Advisers, Treasury, Labor, the Federal Communications Commission and the Nuclear Regulatory Commission. Seven high Department of Justice (DOJ) posts lie vacant or are filled with acting officials. The vacancy backlog builds monthly. In this time of war, a determined enemy could not have wreaked such havoc. Similarly high-ranking vacancies hobble key parts of Defense, Health and Human Services, Homeland Security, State and lesser known, but important, agencies and commissions. The boards governing mine and transportation safety do not have sufficient membership to function, and the Federal Aviation Administration has no leader. During this election year, the Federal Election Commission’s quorum dysfunction defies reason; four of its six members are absent, rendering it unable to issue rulings or offer guidance. As April 15 approaches, the Internal Revenue Service’s top slot is blank. Our federal courts lack judges, prosecutors and marshals, with 19 jurisdictions declaring “emergencies.” Federal justice is delayed as our systemically overworked federal judiciary struggles with 45 empty judgeships. Tellingly, both John G. Roberts Jr. and Samuel A. Alito Jr.’s former circuit seats are among the 14 appellate benches empty, some for years. The appointment process, taking only weeks in the Kennedy/Johnson era, now requires an average of nine months. The confirmation procedure is an Orwellian ordeal � anonymous holds, blue slips, slow walking, character attacks and filibusters. During the Bush II years, the problem grew substantially worse. Even after the Gang of 14 accord checked the raw use of filibusters against Bush’s nominees, they faced never-ending obstruction. Confirmation deals ended after Democrats took the congressional majority in 2007. Senate Majority Leader Harry Reid, D-Nev., continues to orchestrate “pro forma” Senate sessions during holiday breaks (citing nonbinding, dated DOJ guidance) to bluff President Bush out of making recess appointments. Reid pledges to hold open as many positions as possible until after Bush vacates the White House. In February, Bush held an event detailing vacancy harm and criticizing senators for treating nominees like “political pawns.” Perhaps signaling the senators vying to succeed him, he stated that obstruction “makes it harder for future presidents to be able to attract good people” to serve the nation. As the challenges facing the next president require a fully formed government, a basic change in the appointment process is needed. The candidates should make appointment reform a central campaign issue. The eventual victor must start governing before day one. A list of executive nominees through the subcabinet level should be presented to the Senate by December’s meeting of the Electoral College. Regulatory and initial judicial picks should be readied by year’s end. A government can be fully formed by Jan. 20, 2009. Yes, the selection process must be streamlined, nominee questionnaires made uniform and FBI background checks fast-tracked. This will require both straight talk and a commitment to change. But as they say, yes we can. The next president’s inaugural address should demand immediate Senate confirmation votes. It should forcefully remind all that the founders flatly rejected proposals to allow congressional selection of federal officers. In the Federalist Papers, Alexander Hamilton emphasized that the executive alone would have “sole and independent” power to select appointees, the Senate’s only duty being to “ratify or reject.” Use recess appointments The Constitution provides the answer � recess appointments: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Throughout our history, recess appointments proved invaluable. In Evans v. Stephens (2004), the 11th U.S. Circuit Court of Appeals reaffirmed their legitimacy and ruled that there was no “minimum time” needed for a Senate break. Reid’s pro forma sessions are thus pure constitutional bluff; the president can appoint during even a one-day recess. In fact, President Theodore Roosevelt made recess appointments of more than 160 officials in one signing � during a “constructive” recess lasting only a second between the 58th Congress’ first and second sessions. No. 44 should boldly recess-appoint. The Senate should be given one month to “ratify or reject” each wave of nominees. With or without its help, the new government could be fully staffed by Presidents’ Day. The new president must jump-start the U.S. government, setting the stage for more basic appointment reform. Victor Williams is a clinical assistant professor at the Catholic University of America Columbus School of Law in Washington.

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