Home The Washington Diplomat October 2010

Stumbling Block: Congressional Holds Prevent Confirmation of U.S. Envoys

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In December 2009, President Barack Obama nominated Maria del Carmen Aponte to become the new U.S. ambassador to El Salvador. Her bevy of experiences working with Hispanic organizations made her a perfect choice. The longtime attorney's resume included positions such as president of the Hispanic National Bar Association, executive director of the Puerto Rico Federal Affairs Administration and board member for the National Council of La Raza.

As a nominee, Carmen Aponte stood up to scrutiny but had one challenge to overcome before taking her new position: She had to face Congress. In accordance with the U.S. Constitution, the Senate must confirm all presidential ambassador nominations. But more than eight months after she was named Obama's choice, Aponte was still sitting in limbo and awaiting confirmation, and many were shocked at what held her back.

Sens. Jim DeMint (R-S.C.) and James Risch (R-Idaho) had placed "holds" on Aponte due to personal Cold War grudges they held against one of her ex-boyfriends, Roberto Tamayo, a Cuban-American insurance salesman suspected (though never convicted) of maintaining illicit ties with Cuba decades ago. The two senators wanted FBI files and full access on the romantic engagement that took place in the 1990s, even though Aponte had long been long cleared by the FBI.

Aponte was not alone in her long, fruitless wait for Senatorial confirmation. Interestingly, she withdrew her consideration to be ambassador to the Dominican Republic in 1998 after then Sen. Jesse Helms also threatened to delve into the relationship. Today, Obama's nomination to be U.S. ambassador to that country, Raul Yzaguirre, has also encountered congressional resistance, although it had nothing to do with Yzaguirre himself. Rather, Sen. Jon Kyl (R-Ariz.) blocked the appointment because he was upset the State Department wasn't providing him with enough information on the Iran Sanctions Act.

The minority party in Congress — be it Republican or Democrat — has traditionally blocked senior-level presidential nominees from their posts, including newly nominated ambassadors. Sometimes it's for reasons related to the nominee, while other times it has absolutely nothing to do with them. But it's a common tactic to try to force the administration's hand on a particular issue. Increasingly, however, congressional "holds" on ambassadors and other officials are being called into question.

Senatorial holds are often overused and abused, said Kay King, vice president of Washington initiatives at the Council on Foreign Relations and former deputy assistant secretary of state for legislative affairs. Although the hold-power gives the minority party a chance to impart its views, she argues that holds "are being exploited for purposes other than those that concern nominees."

"It's essentially hostage-taking," King said. "A lot of people say, 'These holds are political.' But most holds are not partisan at all — they're personal. They're used to get the attention of the administration or to focus on a totally different issue that has nothing to do with the person in question."

The result has been that many key postings abroad have been vacant well into Obama's term in office, frustrating the president. "At a time when our nation faces so many pressing challenges, I urge members of the Senate to stop playing politics with our highly qualified nominees, and fulfill their responsibilities of advice and consent," Obama said in August.

In an attempt to sidestep the holds, Obama used one of his presidential powers to get Aponte appointed over the recess in August when Congress wasn't in session. Even though he had promised to do away with so-called recess appointments, Obama has now made 22 of them so far.

According to Article II of the Constitution, the president may appoint senior-level officials without senatorial confirmation while Congress is in recess. The appointments are only temporary, however, and expire at the beginning of the next session of Congress. According to the Congressional Research Service (CRS) Reports for the People, presidents have made such appointments since the United States became a nation. In fact, President Bill Clinton made 139 recess appointments while George W. Bush made 171, according to CRS.

Although the phenomenon isn't new, Obama seems to be encountering more resistance than usual, not only for his ambassadorial nominees but for key positions throughout the government. One year into the Bush administration, there were 70 appointees awaiting confirmation. One year into the Obama administration, there were 177.

Increasing attention and criticism is being focused on senators' free reign to block ambassadors from taking up their posts. As a general custom, senators can block nominations for any purpose — or no purpose at all — and there is no time limit for holding candidates in debate without voting on them.

According to King, this lack of restriction on congressional holds can hurt foreign policy and needs to change.

"Failure to take action on nominees in a timely fashion plays into the hands of those who already accuse the Senate of dysfunction, hurts the U.S. image in the world, undermines relationships with the countries waiting for U.S. ambassadors to take up their posts, and discourages the best and most qualified U.S. citizens from agreeing to be nominated in the first place," she said.

Sarah Binder, professor of political science at George Washington University and senior fellow at Brookings Institution, agrees that "it's hard to have foreign policy" without ambassadors. "If we think particular vacancies are consequential, we should worry about [the Senate] not acting swiftly," she said.

Binder explained that senatorial confirmation of ambassadors is a simple up-or-down majority vote. All it takes is 51 members. U.S. ambassador nominees can even be confirmed with unanimous consent, she said, if nobody objects to him or her.

Problems occur, however, when a senator objects to a nomination and opens up debate, Binder said. Because standard procedure does not permit members to vote and confirm nominations while in debate, senators must motion to "close debate" and "move into voting procedure," Binder explained.

But cutting off debate and moving to confirmation procedure is cumbersome because 60 members — more than a simple majority — must vote to close the debate. Therefore, it becomes onerous to confirm the nominee simply because it's difficult to exit debate. This is how senators place "holds" on ambassador nominations.

"'Hold' just means that a member tells the majority leader or minority leader that he or she is going to block the motion to vote on the nominee," Binder said.

Like King, Binder also believes this process can be problematic because holds are "often made for unrelated issues."

"Lawmakers grab the attention of Senate leadership and also the [presidential] administration to make a point," she said. "Most people don't really care about these nominations; they're just easy targets for these senators looking for hostages."

Binder added that there are benefits to the process, however, because it keeps American presidents from appointing ambassadors with extreme positions and views. In that respect, it diminishes partisanship, ensures that ambassadors are competent, and serves as a check-and-balance on the executive branch.

Indeed, lawmakers do express political reasons for blocking nominations. Sen. Sam Brownback (R-Kan.) placed a hold on Obama's ambassador nomination to Turkey for such reasons in August. Brownback said the nominee, Francis Ricciardone Jr., a former U.S. ambassador to Egypt and the Philippines, undermined opposition groups who fought against Saddam Hussein's regime in Iraq and intentionally obstructed U.S. democracy promotion as the head diplomat in Cairo.

"At a time when the Bush administration prioritized building up democratic opposition to the Mubarak regime.... [Ricciardone] downplayed these efforts and, by some accounts, quickly adopted the positions and arguments of his Egyptian diplomatic counterparts," wrote Brownback in an Aug. 16 letter to Secretary of State Hillary Clinton. "I believe democracy and human rights should be considered on par with other aspects of our bilateral relationship, but I am not convinced Ambassador Ricciardone shares this view."

Brownback also warned Clinton that Turkey is "moving away from its secularist roots" and leaning "toward Iran and away from Israel" in the same letter.

Yet old-fashioned politics may also be behind Brownback's hold. Earlier Fox News speculated that the hold really had to do with the senator's longtime support for Armenia, whose various lobbies in Washington also support blocking Ricciardone along with other Obama nominees that they view as antithetical to Armenian interests.

"Though Brownback is retiring from the Senate, he has long held the belief that the U.S. Congress should scold Turkey for a so-called 'Armenian Genocide' that may or may not have taken place during World War I," Fox News wrote in early August. "The gesture may be Brownback's last act of support for the Armenian American community, but it comes at a particularly perilous time in U.S.-Turkish relations."

Yet at least Brownback's hold is related to the original purpose that the hold-power is supposed to serve. "This is an example of a case where a senator has a legitimate concern," King said of Brownback questioning Ricciardone's commitment to democratic reform. "I wouldn't say this is an unreasonable hold at all since it's about the particular nominee."

Armenian concerns have also impacted another nominee. Powerful groups such as the Armenian National Committee of America (ANCA) successfully lobbied Sen. Barbara Boxer (D-Calif.), who has a large Armenian-American constituency, to block the appointment of Matthew Bryza as U.S. ambassador to Azerbaijan for fear that he's too close to the government in Baku (Armenia and Azerbaijan have a longstanding conflict over Nagorno-Karabakh). "Given his track record, he clearly would have been the wrong diplomat, at the wrong time, in exactly the wrong post," said Aram Hamparian, ANCA executive director.

Bryza has received support from Republican backers, however, including the Senate Foreign Relations Committee's top minority member, Richard Lugar (R-Ind.), who praised the career diplomat for advancing U.S. interests "by taking a balanced approach."

But holds concerning the views and qualifications of the nominee are becoming the exception. Many members' holds are nonsensical — such as Kyl's hold on Raul Yzaguirre. As a former president and CEO of the National Council of La Raza for 30 years and longtime Hispanic-rights activist, Yzaguirre seemed a more than worthy candidate for the position of U.S. ambassador to the Dominican Republic. But Kyl blocked him due to a personal vendetta against the State Department. The minority whip senator didn't approve of State's enforcement of the Iran Sanctions Act and claimed the department was uncooperative with senators seeking information about ongoing investigations.

King called this block "troubling" since it had nothing to do with Yzaguirre.

In correspondence between Clinton and Kyl obtained by the Arizona Republic newspaper, the secretary of state promised that lawmakers would be briefed on the Iran sanctions soon but then scolded the senator, reminding him that the U.S. Embassy in the Dominican Republic had been void of a permanent ambassador for more than a year.

"In the meantime, preventing Raul's confirmation from moving forward damages U.S. interests in a critically important region of the world," Clinton wrote.

To make the ambassador nomination process more efficient, King recommends that senatorial holds have time restrictions and not be allowed to continue past 60 or 90 days. After the allotted time, she said, Congress should give one last debate and simply vote to confirm or not confirm the nominee.

Many members of the Senate who also scrutinize this process are trying to outlaw "secret holds" in which senators block a nomination without others knowing. Since 2007, secret holds have been limited to six days as a courtesy to the public, but senators methodologically take turns placing secret holds every few days and, therefore, can hold nominees back without being criticized for their actions.

Binder said such secrecy limits accountability, a similar belief held by Sen. Claire McCaskill (D-Mo.), the lawmaker who's leading the effort to eliminate secret holds. (As of press time, the Senate was set to vote on a proposal to end secret holds in late September as an amendment to the defense authorization bill.) But until the unbounded "hold" power is restricted — if it ever is — Obama and future presidents should expect to tussle with members playing games with even the most qualified U.S. ambassador nominees.


About the Author

Rachael Bade is a contributing writer for The Washington Diplomat.

Last Edited on June 25, 2014