Here’s the rub. The President has to present high-level officials like Inspector Generals (IGs), including OPM’s IG, to the Senate pursuant to Article II, Section 2 of the Constitution for its “Advice and Consent”:

“…and he [The President of the United States] shall nominate, and by and with the Advice and Consent of the Senate, * * * all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law…”

Currently, under expedited Senate procedures to consider Presidential nominees subject to Advice and Consent, it still takes about three “Legislative Days” to force a nominee through a Senate Floor vote once the appropriate Senate Committee has held a Hearing to initially consider the candidate’s qualifications and vote to send him/her to the Senate as a whole for a Floor Vote. With only an announced 72 remaining “Legislative Days” (i.e., days during which the Senate will be in Session) in the calendar year 2020, the Senate Majority Leader (Sen. Mitch McConnel R-KY) has limited time slots available to him for the remainder of this year to move Trump nominees through the Senate. Senator McConnell’s priority has become, as you know, nominations for federal judgeships in District and Appellate courts. There are 84 judicial vacancies still open as of this writing (which is strikingly close to the 85 federal judges President Trump has already seated on federal District and Appellate Court benches since his inauguration three years ago).

 

The Pivotal Question

The question to the Majority Leader then becomes, why would he “spend” precious Legislative Day voting slots to force through an IG nominee rather than spend that very precious voting time slot on the lifetime appointment of a Republican Judge? Remember, too, that at this time, the federal Judiciary is dramatically understaffed with many jurisdictions slowing, or even stopping, civil trials in deference to the growing criminal docket which demands priority and speedy justice to the accused? (See the Law.com story about the Fresno, California federal Judge who on Friday (three days ago) declared a “judicial emergency” and ordered all civil trials in his court to stop so it could catch up on pending criminal trials).

You will also recall that you watched the President’s nominations to EEOC Commissioner and General Counsel positions languish for 18 months, and in the process, lose one candidate who tired of the wait for Senate confirmation.

The answer to the Majority Leader’s conundrum facing him every day about who to force through the Senate Floor vote choke-point is, of course, that he is going to continue to give the appointment of federal Judges priority consideration in the Senate. And – even so – the Majority Leader will still not fill all the judicial vacancies begging for overdue critical staffing by the end of President Trump’s current term of office.

 

So, what happens to Director Leen, in the meantime, while he waits for Senate Confirmation?

Director Leen will remain at OFCCP as the Director until the Senate confirms his nomination. Secretary of Labor Scalia’s Office is currently (optimistically) assuming at least a three-month wait. As a result, the U.S. Department of Labor is accordingly working forward with that expectation in mind. During his remaining stay at OFCCP, Director Leen told me and Candee Chambers he will keep all of his scheduled appointments, will continue work as usual, but will not be out on the speaking circuit making provocative statements. Expect more of a stock “stump speech” from Director Leen in the future. But, if and when three months comes and goes, and there is no Senate Confirmation Hearing and no Senate Floor vote, Director Leen will remain in place as the OFCCP Director, indefinitely…UNTIL WHEN?

Every political appointee knows when s/he arrives that they are leaving…they just do not know when. In Director Leen’s case,

 

John C. Fox Prediction

Trump Loss in the Presidential election Tuesday, November 3, 2020: Director Leen will never become the OPM Inspector General.

Trump Win in November: Director Leen will make it over to OPM after the election (let’s say at least eleven months from now…in December 2020…at the earliest). The Majority Leader (ML) will then have the reprieve and repose he needs to temporarily halt the forced march of federal judicial candidates through the halls of the Senate to Senate Floor votes to confirm them. The ML will then enjoy the luxury to change gears and to start pushing federal Executive Agency officials like the IGs through the Senate. This scenario ALSO assumes the Republicans continue to hold the Senate in an election year in which they have 22 Senators up for re-election versus only 12 Democratic Senators facing re-election. Knowing the ML has another four years to fill federal judicial vacancies IF Trump wins and IF the Senate stays Republican (as expected despite the greater number of Republicans vulnerable to challenge), and with some pundits predicting Republicans will likely even increase their margin of control of the Senate by one seat (Alabama: a Trump stronghold), Majority Leader McConnell will feel the comfort to stop the federal judicial parade from allowing some other Trump nominees to parachute into vital high-level federal agency jobs.

 

So, what’s the backstory?

With the current lack of bipartisanship in the Congress, Democrats announced in 2017 a formal plan to seek to thwart and stall President Trump by slow-walking Trump nominees submitted to the Senate for Advice and Consent (by delaying Committee Hearings, wherever possible, and by debating nominees on the Senate Floor for the full length of time Senate Rules permitted). The Republicans then reacted angrily by reinterpreting Senate procedural rules as to Advice and Consent nominations for the federal judiciary (other than the U.S. Supreme Court) and as to high-level Executive Branch nominations (other than Department heads reporting to the President). That procedural change allowed the Majority Leader to then invoke cloture (a parliamentary device in the US Senate to stop debate and force a vote on a pending legislative issue) on Senate Floor debate of Trump nominees after only two hours of debate on the Senate Floor, instead of the old procedure which had allowed up to 30 hours of debate on the Floor. (In fact, the first thing the Majority Leader did after the Senate last Wednesday voted to acquit President Trump in his Impeachment trial was to invoke cloture on five pending judicial nominations and thus re-start the judicial confirmation juggernaut in the Senate after a five-day pause to try the President).

While Senator McConnell’s procedural rule change has now positively impacted the federal judiciary for Republicans (20% of all federal judges are now Trump appointees, and more than half of the judges on the previously very liberal Ninth Circuit Court of Appeals (San Francisco) bench are now Trump appointees), Democrats will not soon forget and are only biding their time for some good old-fashioned payback. Or as we say in the small confines of the Silicon Valley: “What goes around comes around.”

 

Is there any sign in sight of the end to the bi-partisan polarization in the Nation’s Capital – which seems to only be intensifying?

I remember fondly, during my tenure at OFCCP, President Reagan would walk into a back room with the then Speaker of the House (Democrat Tip O’Neil) when the Congress had locked-up along political party lines….

The Speaker and President Reagan, two politically savvy and practical Irishmen, would talk it through and emerge hours later, all smiles with a “deal” in hand which pleased no one but satisfied everyone. President Reagan’s two gifts, I found, were his sincere interest in people and his tough talk seasoned with humor and the ability to compromise on all but a few political issues.

 

Shout Out

February 7, 2020, was Ronald Reagan’s 109th birthday. May he and the former Speaker, Tip O’Neil, rest in peace, and the memory of them both perhaps help us all limp forward.

 

Reality…

One never knows. Maybe my predictions about Director Leen’s long wait for confirmation will not come true as Republicans and Democrats again embrace…and love and happiness breaks out all over the halls of Congress with the arrival of Spring????

Yeah, don’t hold your breath waiting for that…One of my fondest bi-partisan stories, though–demonstrating that one can hold strongly differing policy views yet remain friendly and cooperative with the opposition–occurred one day on the Senate Floor when I was a student Intern at the Los Angeles Times Washington D.C. Bureau…

I observed a senior Republican Senator deliver a blistering speech on the floor of the Senate attacking a bill proposed by a senior Democratic Senator. While his remarks were pointed, the Republican Senator’s remarks obeyed the Senate polite speech protocol (which was to never attack a fellow Senator by name…just his or her political position). Nonetheless, everyone in the Chamber knew, of course, who the Democratic Senator was who had sponsored the bill the Republican Senator had just skewered. As the Republican Senator’s time expired, he walked off the Senate Floor near where I was standing and passed a few feet from where the Democratic Senator who had sponsored the bill was also standing. The exiting Republican Senator then yelled over to the sponsoring Democratic Senator: “Hey, I’m going to see you and Marge and the kids on Sunday for our barbecue at my house, right?” The sponsoring Democratic Senator then immediately yelled back, “You bet, buddy. We’ll be there at one o’clock, right?” To which the blistering Republican Senator replied: “And please ask Marge to bring that German potato salad I like so much. Boy, that’s just the best.” To which the sponsoring Democratic Senator gave the Republican a thumbs up and said: “You can count on it. See you Sunday!”

As the rookie cub reporter, I subsequently learned that these two Senators were the best of friends. I then realized the bluster was for the constituents, and the relationships between the Senators were the glue that pasted legislative bills together. The respect for each other fostered the necessary cooperation for these Senators to agree to disagree while searching for common ground.

John C. Fox

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