Christina Kinane, Yale University

Abstract: Controversies over political appointees were ubiquitous during the Trump administration. From empty positions and their vacuums of leadership to the questionable permanence of appointees’ “acting” statuses, many of President Trump’s “very best people” were appointed without the requisite Senate confirmation. At his first Cabinet meeting of 2019, six of Trump's twenty-four Cabinet members were interim appointees. In fact, Trump consistently avoided Senate confirmation for more than a third of vacant positions, despite having a Republican Senate that would seem eager to confirm his choices. In the wake of the idiosyncrasies of the Trump administration, many question whether his appointment politics might simply be explained with an asterisk. Yet, despite Trump’s atypical expressions of affinity for his actings, his strategies to maintain vacancies – leaving certain positions empty while filling others with interim appointees – are not unprecedented. Between 1996 and 2016, nearly 40 percent of vacant positions reported to the Government Accountability Office went without subsequent nominations; and 60 percent of those vacant positions were temporarily filled by interim appointees.  In Vacancy Politics, I examine in depth how and why presidents use vacancies in their top appointments and the implications of those choices for separation of powers. I argue that vacancies in appointments that require Senate confirmation are calculated choices presidents make, within their larger nomination strategies, to advance their policy priorities. 

Separation of powers insists that the individuals tasked with policy implementation and enforcement are chosen with the advice and consent of the Senate. Thus, our examinations of appointment politics typically focus on the ways that the Senate constrains presidential preferences, which presumes that presidents unfailingly seek Senate confirmation. Presidents, in fact, do not; instead, they frequently fill vacancies in agency leadership with unconfirmed, temporary officials or leave them empty entirely. Importantly, then, if the president submits a nominee, the Senate's choice to not confirm does not necessarily foil the president’s appointee selection. In Vacancy Politics, I closely examine the politics of this unconventional appointment strategy. To do so, I develop and test a new theory of appointments that differentiates among vacancies, while also incorporating the Senate's leverage to veto a nomination and the president's power to choose not to submit one in the first place. Through cases studies and analysis of an original, continuous dataset, I take a look at vacancies, appointments, and nominations across 15 executive departments from 1977 to 2021 to learn when presidents choose to leave certain positions vacant while seeking the Senate’s advice and consent for others, how the use of interim appointees varies by administration, and how it affects the dynamics of the formal confirmation process. Specifically, I argue that presidents’ and the Senate’s choices to fill a position reflects their priorities and the character of vacant positions. I show that interim appointees are more likely when positions have a substantial capacity to act on presidential expansion priorities, which suggests that presidents can capitalize on their first-mover advantage to evade Senate confirmation. I also show that when positions are filled with interim appointees and the president submits a nominee, the Senate often relinquishes consent by refusing to advance or reject the nomination. 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.