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President-elect George W. Bush moved quickly last week to complete his Cabinet, in an appointment process compressed in time by the Florida election recount battle. But Bush’s haste is not the only unusual aspect of the current presidential appointment period. He has delegated a rare level of authority to his running mate, Dick Cheney, to help in the appointment process. And Bush will also be the first new president to have to deal with the Federal Vacancies Reform Act, passed by Congress in 1998 in the wake of the controversy over President Bill Clinton’s appointment of Bill Lann Lee as acting assistant attorney general to head the Justice Department’s Civil Rights Division. The law placed new restrictions on the appointment of “acting” officials, many of whom may be named in the early days of the Bush administration. Michael Gerhardt, professor of law at the College of William and Mary School of Law, is an expert with a good sense of timing. He testified before Congress on the new vacancies law and has written “The Federal Appointments Process,” a new book published by Duke University Press. It is a comprehensive history that details the constitutional and political controversies surrounding appointments — judicial and nonjudicial — since the early days of the republic. Gerhardt answered questions about the Bush appointments and the new federal law in an e-mail conversation with Tony Mauro. TONY MAURO: Apart from having to be completed quickly because of the election recount, how does President-elect Bush’s appointment process differ from that of past presidents, Bill Clinton in particular? MICHAEL GERHARDT: President-elect Bush has moved quite quickly and smoothly in assembling his Cabinet. He has kept a relatively tight lid on the process and had no embarrassing revelations or leaks. He made fewer promises in assembling his cabinet than President Clinton did, and has kept most of them. The one arguable exception is that the president-elect seems not to have worked very hard or achieved very much in terms of bipartisanship; the single Democrat that he has appointed (Norman Mineta as transportation secretary) appears to be a token gesture toward bipartisanship. Otherwise, I think it is important to note that the only real controversial nomination made early on by Clinton in terms of policy disagreements was that of Lani Guinier, whereas Bush has made several: First, Sen. John Ashcroft will be a lightning rod. Moreover, Spencer Abraham and Tommy Thompson are relatively controversial choices for their respective departments: Abraham has previously called for the abolition of the Energy Department, while Thompson has been a harsh critic of HHS in the past. Bush’s Cabinet also appears to be filled as much as Clinton’s was with Washington insiders. Indeed, it is rather telling that Bush has turned to two senators who were strident critics of Clinton and voted for his ouster, while Linda Chavez too has been an outspoken critic of Clinton on television and other fora. One thing I do stress in the book is that a president might consider appointing senators as a means for either relatively smooth confirmation proceedings or breaking through likely logjams in controversial areas. Clearly, the president-elect has followed the latter course in nominating both Ashcroft and Abraham. At the same time, it is striking that Bush has placed his pro-choice nominees far away from social policy-making positions. One interesting difference between Clinton and Bush is that, in time, Clinton began to use the nominating process to vet his possible nominees. He or his staff would float names, and the one that seemed to sail the best would likely be nominated. You might recall this is how Clinton chose his Supreme Court nominees. Bush, thus far, has not chosen that route, though it is safe to say that some people, such as Dan Coats, probably feel they have been thrown to the wolves. At least some of Bush’s appointments may not be confirmed before Jan. 20, and certainly many of the sub-Cabinet level jobs won’t be filled before their current occupants leave. In filling some of the vacancies temporarily, Bush will have to deal with a new law that was passed by Congress after the controversy over Bill Lann Lee’s appointment as acting assistant attorney general for civil rights. What does the Federal Vacancies Reform Act require and how will it complicate the appointment of people to fill “acting” positions? For the president-elect, there are several provisions of this act to keep in mind or to order to ensure a relatively smooth transition. The first thing for him to consider is how long to keep Clinton’s people in place. As long as he keeps them in place, he does not trigger the act’s provisions, for none of them would be acting officials. The problem will arise if he chooses to let the Clinton appointees go. At that point, the act’s restrictions are triggered. The first critical restriction has to do with the people who are eligible to serve as acting officials — with a few exceptions, the person must be the first assistant or must come from an office that requires a presidential nomination, subject to the advice and consent of the Senate. For instance, if Bush lets Attorney General Janet Reno go, Eric Holder, the deputy attorney general could become the acting attorney general. The second important restriction is the act’s limitations on the extent of the “function or duty” that a temporary appointee may exercise-he or she may only exercise those specific functions or duties created by statute or regulation in effect within 180 days before the vacancy arose. Moreover, unless the act’s procedures are followed, once a vacancy arises, it has to remain vacant. So, if Bush chooses to remove someone and place an acting official in his or her place, he runs two risks. First, he is stuck with the people who are already acting as “first assistants” or the deputies (or, depending on the office, the person who is the first deputy assistant). Second, if the confirmation proceeding takes too long (more than 180 days), then the office must be vacated and left vacant until such time as it can be filled permanently. Some of Bush’s appointees have strong managerial experience, while others have in-your-face ideological credentials. TM: Is that unusual historically, and how do you think it will work out? MG: I think the mix is not unusual: Presidents Ronald Reagan and George Bush had a similar spectrum. But the choice of nominees with strong ideologies essentially guarantees a stormy confirmation proceeding. The president-elect has, however, increased the chances that his most controversial nominees (namely, Ashcroft and Abraham) will probably be confirmed, because of the tradition in the Senate to confirm their colleagues. This is not an ironclad tradition, though. Ironically, the last senator to have been nominated but rejected by the Senate was John Tower, President George Bush’s first nominee for secretary of defense. Tower’s rejection created a vacancy that was filled by none other than then-Rep. Dick Cheney. Tower was rejected not because of any ideological disagreements, but rather his history of drinking and womanizing, which finally caught up with him in the confirmation process. Thus, the likelihood of any of Bush’s nominees running into fatal trouble depends less on their ideologies and more on their personal integrity. TM: What about Dick Cheney’s role in the appointment process? How does that compare with Vice President Al Gore’s role, for example, and what does it say about Cheney’s role in the administration? MG: For me, the most striking difference between Bush’s and Clinton’s appointments is the relatively strong influence of Dick Cheney. In contrast, Vice President Gore was virtually shut out of the appointments process. Several cabinet nominees worked for or with Cheney in prior administrations. Their presence in the administration signals that Cheney has enormous influence in setting both the tone and agenda of this administration. Bush has given Cheney much more say — in fact, probably more say than most vice presidents have had — in recommending or signing off on various nominees. Moreover, President Clinton’s decision to give his wife more of a say than his vice president in assembling his Cabinet and the rest of his administration helped to make her into a lightning rod. My guess is that Cheney will not be as much of a lightning rod, because from the first moment he was named as Bush’s running mate the expectation was that it was done with governing more than with campaigning in mind. TM: How do you assess the appointments of former Sen. John Ashcroft as attorney general, and Alberto Gonzales, who has relatively little Washington experience, as White House counsel? MG: First, the nomination of Sen. Ashcroft is likely to be the most contentious of Bush’s Cabinet-level nominations. I expect Ashcroft ultimately to be confirmed both because of the tradition of confirming former senators in the absence of some very compelling policy or personal faux pas on Ashcroft’s part. Second, the Ashcroft-Gonzales nominations make for an interesting team in terms of the legal counsel Bush will likely receive from them. Because Gonzales is a Washington outsider, my guess is that he will be less important than the attorney general in giving advice to the president on legal and constitutional questions but extremely important (and perhaps more important than the attorney general) in giving advice on judicial nominations. As a former Texas Supreme Court justice, Gonzales brings special expertise and perspective in measuring the fitness of various possible candidates to serve as judicial appointees. TM: Your book suggests several reforms in the process. Do you think the system is in dire need of reform or is it basically sound? MG: One of the most important reforms of the process went into effect in the fall. The Congress streamlined the paperwork for nominees to get through the transition period more quickly. Other reforms will be harder to come by. Among the most important will relate to recess appointments and judicial nominations. Clinton’s nomination of Roger Gregory to the 4th Circuit is a shrewd move calculated to put Bush and the Republican senators on the defensive not to reappoint or confirm him when the recess appointment expires at the end of the next congressional session. Many Republican senators have demanded more consultation prior to the president’s making of recess appointments, and it is likely Bush will accede to the pressure of these senators to avoid antagonizing them through the exercise of this power. There have been numerous problems with inordinate delays in the judicial confirmation process. Some of these will dissipate once the new Congress comes into session, because many of the Republican senators disposed to stall the confirmation process will be much more receptive to Bush’s nominees. Nevertheless, some Democrats will try to use holds and other delay tactics both as payback for stalling done during the Clinton administration and to prevent appointments that they think are harmful to the administration of justice. Bush might be able to circumvent the vicious cycle of payback by cutting more deals than Clinton did in making judicial nominations; otherwise, he can expect some of the delays that plagued both his father’s and Clinton’s judicial nominations to persist.

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