PROFESSOR ANNE JOSEPH O’CONNELL DELIVERS GROUNDBREAKING RESEARCH ON HOW ADMINISTRATIVE LAW REALLY WORKS
When it comes to presidential appointments, a toxic mix of postponed nominations, failed nominations, and delayed confirmations is wreaking havoc on federal agencies.
“Extremely important agency positions often are not filled,” says professor Anne Joseph O’Connell, a leading expert on the mechanisms of this sputtering machine and their effect on governance. “I’m worried about the functioning of modern government, which relies heavily on administrative agencies to do its work.”
O’Connell’s diagnoses are clearly valued. Two years ago, she was appointed to the Administrative Conference of the United States—an independent federal agency dedicated to improving agency procedures. The U.S. Court of Appeals for the District of Columbia Circuit recently cited her work in a case as it lamented the lag time between vacancies and confirmations.
In 2015, O’Connell won the American Bar Association’s annual award for best administrativelaw paper or book published in the preceding year.
She received the same award in 2010, one of only five scholars to win it multiple times since its inception in 1986.
Her eye-opening research in “Bureaucracy at the Boundary” refutes prevailing conceptions of administrative law by exposing the surge of “fringe” agencies— over which the executive branch has minimal control—and their prominent role in today’s regulatory state. In doing so, she shows the chaotic treatment of these entities by the courts. The award judges described O’Connell’s paper as “beautifully written” and “meticulously researched.”
More recently, O’Connell produced a study of presidential appointments that identified a troubling rise in failed nominations and the confirmation time required for all non-routine civilian positions since 1981. Through 2014, President Obama had 28 percent of his agency nominations returned to him or withdrawn, compared to 17 percent for President George H.W. Bush. The average confirmation time for Obama’s nominees—127 days—was more than twice that for President Reagan’s.
In earlier work, O’Connell found that a smaller set of senior executive agency positions were empty or filled by acting officials between 15 and 25 percent of the time, on average, from 1977 to 2005.
“Nominations are slow to come out of the White House, and our tedious appointments process asks for duplicative information,” she says. “Until very recently, we also saw a troubling lack of training for private sector leaders who were tapped to head public agencies.”
The result: greater turnover, a shrinking pool of viable candidates, and what O’Connell calls “a pretty homogeneous group of Washington insiders.” She recommends trying to secure two- or four-year commitments from candidates, and confirmation deadlines for key posts in sensitive areas such as national security.
O’Connell applauds a recent statute eliminating the confirmation requirement for 200 non-senior agency jobs, and wants that extended to other positions. She also seeks “a manageable process that doesn’t require nominees hiring private lawyers to fill out the paperwork.”