This happens because the game is so easy. Grinding down a nomination only backfires if the administration has a brilliant strategy for making the nominee famous. That's hard to do. In the 14 months that Diamond floated in the phantom zone, his stalled nomination was discussed a few times on cable business channels but never on network news and only twice on cable news—a short segment on an episode of The Rachel Maddow Show and an interview with Fareed Zakaria.
It's tough to make people care about this, although for a while, Republicans were good at it. During the Bush years, a loose alliance of Republican staffers and conservative groups made sure that the judicial nominees held up by Democrats—Miguel Estrada, Janice Rogers Brown, Priscilla Owen, to name a few—became famous in TV ads and sob stories. Manny Miranda, a former Senate GOP staffer who worked on this, lost his job over this, and is now happily doing other things, says that Estrada's nomination to the court was the focus of more op-eds and editorials than any other nominee for a job at that level. "When I was on conference calls back then," says Miranda, "I'd be clear: The only way to communicate this is to personalize it. Miguel Estrada had a story to tell. You need to tell a story."
The problem is so bad that it might actually get solved. (This isn't something you can say about most issues up for debate in the Senate.) Since March, a group of senators led by Joe Lieberman, Chuck Schumer, Susan Collins, and Lamar Alexander have been gathering support for legislation that would cut by one-third the number of jobs that need Senate confirmation. It wouldn't directly affect the affairs of an OLC nominee, or a Fed nominee, but nothing that clears up the schedule could hurt them. (In our interview, Johnsen said the marathon, plot-twisting health care debate continually delayed the date Democrats were thinking about spending some capital and voting on her.) There are very few bills that have the support of both parties' leadership. This is one of them.
"There are so many confirmable jobs that no administration can hope to people all of the positions in any reasonable period of time," says Sen. Jon Kyl, the Republican whip. "And we've got too many lower-level people subject to confirmation for what I would call the proper function of government."
Some of the veterans of the confirmation wars want to do more. Miranda's idea is so bold that it's hard to imagine a Democrat floating it.
"You can draw the line," says Miranda, "and people below a certain line—assistant secretary, people below that—are deemed approved and subject to confirmation. They exercise authority until they're confirmed. That would solve this problem you have now, where the acting career person who takes the job while the nominee's frozen is cautious, hesitant to make decisions. I think the president, as a policy matter, deserves to get the names in right away, and get who he wants, instead of getting bureaucrats."
Miranda is adamant about this. "People have no idea about how this affects the government at lower levels. The culture of delay is almost as crippling as the corruption we fight across the world. Our corruption is delay. No one's willing to make decisions. That hurts us."