American Political Science Review (2021) 115, 2, 599–614
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doi:10.1017/S000305542000115X © The Author(s), 2021. Published by Cambridge University Press on behalf of the American Political Science
Association
Control without Confirmation: The Politics of Vacancies in
Presidential Appointments
CHRISTINA M. KINANE
Yale University
S
cholarship on separation of powers assumes executives are constrained by legislative approval when
placing agents in top policy-making positions. But presidents frequently fill vacancies in agency
leadership with unconfirmed, temporary officials or leave them empty entirely. I develop a novel
dataset of vacancies across 15 executive departments from 1977 to 2016 and reevaluate the conventional
perspective that appointment power operates only through formal channels. I argue that presidents’
nomination strategies include leaving positions empty and making interim appointments, and this choice
reflects presidents’ priorities and the character of vacant positions. The evidence indicates that interim
appointees are more likely when positions have a substantial capacity to act on presidential expansion
priorities and suggest that presidents can capitalize on their first-mover advantage to evade Senate
confirmation. 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.
“Top posts at the Defense and Justice departments went
vacant for months. Inspector general jobs in several
agencies are still empty. The National Labor Relations
Board came close to dysfunction because of empty
chairs. [...] Empty chairs make rotten policy.”
The Washington Post Editorial Board
INTRODUCTION
Presidents have the power to unilaterally set the direction of policy outcomes. Yet, to exercise that power,
presidents must rely on the appointees who design and
then implement those policies. Appointees are therefore vital components of any successful presidential
policymaking, especially those in leadership positions
whose authority requires Senate confirmation (known
as PAS positions). Yet, in the past few years, the Trump
administration persistently left one third of PAS positions without a Senate-confirmed appointee, despite a
Republican Senate majority that would seem eager to
confirm his choices. Given these seemingly “empty
chairs,” The Washington Post excerpt above would
likely surprise no one today—except that it was published on March 14, 1994.
The fact is that deliberate vacancies in agency leadership are nothing new. From Carter to Obama, Executive department PAS positions were vacant, on
average, 25% of the time (O’Connell 2009). These
vacancies are only further prolonged when presidents
eschew the formal nomination process. Most recently,
just one in six positions that were vacant between 2017
and 2020 had a nomination submitted within three
months. Critically, though, these vacancies do not
remain entirely unfilled; interim appointments are also
strikingly common. Between 1996 and 2016, nearly
40% of vacant PAS positions reported to the Government Accountability Office went without subsequent
nominations, and 60% of those vacant positions were
temporarily filled by interim appointees.
Nor are these vacancies among minor positions that
capture only the attention of finicky micromanagers.
For example, when President Obama launched an
ambitious new U.S. counterterrorism policy to prevent
violent extremism with humanitarian engagement,1 it
was his Under Secretary for Civilian Security, Democracy, and Human Rights at the Department of State,
Sarah Sewall, who oversaw the policy’s development
and implementation. Upon entering office, President
Trump outlined his own counterterrorism policy priorities, which nearly eliminated humanitarian efforts.2
Given this stark shift in policy, we would have expected
his Under Secretary to be tasked with designing and
implementing a radically different policy approach—
except Sewall’s position was left empty for most of the
administration’s first year.
Why do presidents choose to leave certain positions
vacant while seeking the Senate’s advice and consent
for others? Why might they choose to leave certain
vacant positions empty while filling others with interim
appointees? Unfortunately, our existing theories of
appointment strategy provide few answers. Indeed,
they render vacancies mere aberrations and expect
presidents to unfailingly pursue formal nominations.
These theories are certainly correct in that appointments to PAS positions—the 1,200 cabinet secretaries,
agency directors, general counsels, and other personnel
whose day-to-day actions determine the actions of the
government—are the president’s most effective means
of controlling the path of policy. What they miss is that
presidents may strategically use vacancies in PAS
1
Christina M. Kinane , Assistant Professor, Department of Political
Science, Yale University, christina.kinane@yale.edu.
Received: December 10, 2019; revised: December 07, 2020; accepted:
December 22, 2020. First published online: February 15, 2021.
https://obamawhitehouse.archives.gov/the-press-office/2015/02/18/
fact-sheet-white-house-summit-countering-violent-extremism. Accessed
January 15, 2019.
2
https://www.whitehouse.gov/wp-content/uploads/2018/10/NSCT.
pdf. Accessed January 15, 2019.
599
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Christina M. Kinane
positions to achieve their policy priorities, whether by
deliberately leaving a position empty or installing an
interim appointee rather than seeking Senate confirmation for a formal nominee.
Part of the problem is that current theories treat
“vacancies” as merely the absence of Senate-confirmed
appointees.3 Inevitably then, we need to correct how
we define vacancies because PAS positions without
confirmed appointees could be empty or filled with
interim appointees, temporary officials exercising the
authority of the position without Senate confirmation.
In other words, a president’s choice to not nominate or
the Senate’s choice to not confirm does not exclusively
create “empty chairs.” Instead, the reversion point
includes empty positions and interim appointees.
Without this distinction, existing theories miss how
the duality of vacancies offers the president a remarkable opportunity to circumvent the Senate. Presidents
unilaterally choose to leave positions empty or to fill
them with interim appointees. The Senate enters the
appointment calculus only after a president, again unilaterally, chooses to submit a nominee. Ultimately,
despite its veto power, the Senate’s inability to compel
an appointment or nomination grants presidents considerable power to not appoint and not nominate.
Furthermore, I argue that the president’s decision to
keep a position empty requires an appointment strategy
that centers on the characteristics of the position itself.
That is, the crucial question for a president is not as
much whether a potential appointee might be confirmed
but how much the president’s specific policy priorities
can be advanced without a formal appointment. This
strategy, then, offers the president an additional degree
of flexibility to consider whether an open position
requires an appointee before devoting resources to
identify potentially Senate-confirmable nominees.
Recognizing that we have long confounded empty
positions and interim appointees—when we have not
been ignoring them altogether—reshapes how we represent the strategic considerations of the president and
the Senate when they are faced with an appointment
opportunity. In particular, it focuses our attention on
two intertwined decisions that presidents alone make:
whether to nominate someone to fill a vacant position
and, first, whether to leave it empty or fill it with an
interim appointee. In this article, I develop a new
theory of appointments that explains both these choices
as a function of the capacity of vacant positions to
achieve presidents’ policy priorities. Critically, this theory incorporates the Senate’s leverage to veto a nomination and the president’s power to choose not to
submit one in the first place. It also relies on a conceptual innovation: since there is no appointee to examine
when presidents choose to maintain empty positions, I
develop a new measure of the capacity of positions
themselves to advance policy priorities to expand or
contract the reach of an agency—which I call their
Position Value. This position value, which is independent of a particular nominee or appointee, determines
whether and when rational presidents strategically
forgo appointments and nominations.
To assess this theory, I develop a new dataset that
identifies when a president leaves a position empty by
design or unilaterally fills it with an interim appointee.
These originally collected data capture the status of
PAS positions (e.g., empty, interim appointee, permanent appointee), the positions’ capacity to control policy
outcomes, and the Senate’s and president’s policy priorities, across all fifteen Executive departments from
1977 to 2016. This new dataset is the most comprehensive in political science to date and covers a total of
11,043 position-year observations. The empirical
results provide support for my theory, suggesting that
presidents leverage vacancies to set the direction of
policy output from agency actions. Specifically, I find,
in keeping with expectations, that when presidents
prioritize expansion,4 vacant positions with high levels
of capacity to control their agency’s policy outputs are
more likely to be filled with interim appointees.
Altogether, this article makes three notable contributions. First, by explicitly differentiating between
empty positions and those filled by interim appointees,
the theory presented here identifies the more accurate
choice set available to presidents for maintaining political control of the bureaucracy. Second, I present the
first dataset of its kind on empty and interim appointees
in PAS positions and harness that data to test the
theory’s implications. Last, and more generally, this
research challenges the dominant perspective that
presidential appointment power operates only through
formal channels like nominations or recess appointments, which does not leave room to consider the
informal power of unilateral presidential inaction. As
this article demonstrates, for our theories of institutions
and separation of powers to be complete, they need to
consider how deliberate sidestepping of formal powers
affects interbranch bargaining, agenda-setting, and
policy-making strategies.
The next section briefly reviews work on presidential
appointments and the mechanics of vacancies, followed
by a presentation of the basic theoretical model. I then
present my key empirical findings. The final
section discusses these these key findings and the direction of future work.
VACANCIES, APPOINTMENTS, AND ADVICE
AND CONSENT
Scholars, understanding the importance of appointees
for policy and agency performance, have modeled the
nomination and confirmation process (e.g., Chiou and
Rothenberg 2014; Hollibaugh, Horton, and Lewis 2014;
Kaufman 1981; Lewis 2008; Nixon 2001). As they
examine the balance of executive and congressional
3
E.g., Chiou and Rothenberg (2014), Dull et al. (2012), Hollibaugh
(2015), Hollibaugh and Rothenberg (2017), Lewis (2008), O’Connell
(2009), Ostrander (2016), and Resh et al. (2020).
600
As discussed below, I define “expansion” as priorities to increase an
agency’s activities and policy output.
4
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Control without Confirmation: The Politics of Vacancies in Presidential Appointments
control of the bureaucracy, these current theories of
appointments maintain that presidents’ choices over
agency leadership are constrained by the extent to
which Senate preferences deviate from those of the
president. These theories assume that presidents will
always make appointments, through the nominations
process, to head agencies. Presidents, in fact, do not.
Presidents maintaining vacancies without submitting
nominations deny the Senate its advice and consent
Constitutional prerogative. Yet, scholars typically
frame threats to separation of powers in terms of
presidents usurping power not provided by the Constitution or congressional delegation (e.g., Chiou and
Rothenberg 2017; Moe and Howell 1999) rather than
presidents sidestepping that power. Indeed, existing
research examines expansions of presidential policymaking power through executive orders (e.g., Howell
2003), proclamations (Rottinghaus and Maier 2007),
signing statements (Sievert and Ostrander 2017), and
presidential memoranda (Lowande 2014) as strategic
tools that can unilaterally achieve policy goals without
legislation (Ouyang and Waterman 2015). Others
address how presidents influence policy by unilaterally
constructing more controllable agencies (Howell and
Lewis 2002) or adjusting the number of political
appointees within agencies (Lewis 2005). Few consider
how not exercising formal powers consolidates influence over outcomes, particularly when presidents
choose not to submit nominees for Senate confirmation
or choose not to appoint at all. This omission is surprising, as empty posts and interim appointees have been
in the president’s toolbox for decades. As shown in
Figure 1, the percentage of PAS positions filled with
interim appointees or left empty varies across and
within administrations. This variation provides a first
look at the necessity of differentiating between interim
appointees and empty positions, as well as the opportunity for presidents to use vacancies strategically.
While scholars have made important progress in illuminating key aspects of the appointment process, the
interbranch politics of vacancies remains understudied
and untested. Instead, extant research cites vacancies as
unfortunate consequences of turnover in a large administrative bureaucracy (e.g., Chang, Lewis, and McCarty
2001), confirmation delays (e.g., Binder and Maltzman
2002; Madonna and Ostrander 2017; Ostrander 2016)
that are prolonged by nominee ideologies (e.g., Bonica,
Chen, and Johnson 2015; Chiou and Rothenberg 2014),
periods with divided government (e.g., McCarty and
Razaghian 1999), or presidential delays in nomination
due to the vetting process (O’Connell 2009). Just a
handful of studies explicitly considers how presidents
contribute to the accumulation of vacancies (O’Connell
2009; Hollibaugh 2015; Hollibaugh and Rothenberg
2017; Resh et al. 2020), with a notable exception being
Hollibaugh (2015), who does explore sustained vacancies as a deliberate strategy within a president’s larger
nomination strategy space. However, more work still
needs to be done, as Hollibaugh’s theoretical model
considers only the timing of nominations and does not
set them within a larger bargaining game over Senate
confirmation. Furthermore, until very recent work from
O’Connell (2020), studies of how presidents unilaterally
appoint interim officials to vacant posts, often in lieu of a
nominee, have been missing from executive politics
research. Consequently, since previous theories focus
on the subgame of choosing a nominee, we have yet to
consider the full choice set available to presidents within
a more complete, extended model of appointments. The
theory presented in this article does exactly that.
The Mechanics and Implications of Vacancies
In an effort to limit prolonged empty positions, encourage continuity in agency leadership, and maintain
agency productivity in the absence of a confirmed
appointee, Congress conferred interim appointment
power to the president through the Vacancies Act of
1868 and its reforms. Under the Vacancies Act, the
tenure of an interim appointee was limited to 30 days
until 1988, when it was increased to 120 days by the
Presidential Transition Effectiveness Act. The Federal
Vacancies Reform Act (FVRA) of 1998 further
extended this tenure and added a set of guidelines for
who can serve as an interim appointee. Currently, an
interim appointee can typically fill the position for
210 days after the vacancy began and upwards of
720 days if the respective nominations are withdrawn,
rejected, or returned, and these limits are suspended if
the Senate does not return the nomination. Under
these conditions, an interim can serve for almost two
years or even indefinitely, which makes interim
appointments a potentially powerful strategy.5 While
it was intended to reaffirm the power of the Senate’s
confirmation prerogative by establishing clearer constraints on interim appointees (Hogue 2017), the
FVRA appears to have been less than successful in
limiting presidential use of temporary officials. The
FVRA extensions to interim tenures ultimately created
a set of vacant positions for which timing considerations
encourage presidents to forgo nominations entirely.6
Notably, as agency leadership, PAS positions are
essential links in the chain of command for administrative policy making. Their responsibilities—ranging
from managing agency operations, liaising with Congress and the White House, supervising policy
5
See O’Connell (2020) for details of FVRA timing restrictions. Once
these time restrictions are exhausted, there are no immediate ramifications for an interim’s overstay, except a violation letter from the
GAO. However, legal action could be brought that challenges an
interim appointees’ standing to engage in official business, as seen
with NLRB v. SW General, Inc. (2017).
6
Presidents have also frequently used their recess appointment
power to circumnavigate the confirmation process (e.g., Black et al.
2011; Black et al. 2007; Corley 2006), as they do with interim
appointments. However, while recess appointees serve limited terms
that expire at the end of the next Senate session (Article 2, § 2, cl. 3 of
the Constitution), they are not interim as defined by the Vacancies
Act. Instead, recess appointees carry status similar to that of confirmed appointees—their positions are not “Acting” status. Ultimately, for the inquiry at hand, recess appointments are treated as
functionally equivalent to Senate-confirmed appointments during
their term, at the end of which a vacancy would be generated for
the president to determine whether to fill or leave empty.
601
Christina M. Kinane
50
Percent of PAS Positions
40
30
20
10
Empty
Interim
2015
2013
2011
2009
2007
2005
2003
2001
1999
1997
1995
1993
1991
1989
1987
1985
1983
1981
1979
0
1977
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FIGURE 1. Percentage of Executive Department PAS Positions: Empty, Interim, Vacant (1977–2016)
Vacancy
Note: “Vacancy” indicates the conventional definition of all positions without a Senate-confirmed appointee, which encompasses “Empty”
positions and “Interim” appointments.
development and rule-making, and crafting communications to overseeing enforcement and implementation, among others—facilitate the accountability,
efficiency, and responsiveness of government to its
citizens. Consequently, each type of vacancy has distinct and important implications for policy and agency
performance. Foremost, vacancies left empty and those
filled with an interim appointee differ on one visible
dimension: the presence of a designated person with
the authority to perform the duties of the position.
On the one hand, empty positions typically reduce
the responsiveness of the administrative state to stakeholder needs, limit the generation of public policy, and
stall enforcement activities. For instance, when the
Administrator of the Office of Information and Regulatory Affairs (OIRA) is empty, regulatory review
periods are significantly longer and, more generally,
OIRA is less responsive to the president’s policy
agenda (Bolton, Potter, and Thrower 2015). The
absence of leadership can also make careerists feel
“rudderless,” and “thwarted for months or even years
from doing the government jobs they were hired to do”
(Leonnig 2008, 1), decreasing the morale and trust that
reinforces careerist compliance with the administration’s larger agenda. Moreover, empty PAS positions
will generally make agencies less able to handle timesensitive crises that require swift decision making. For
example, the Assistant Secretary for Occupational
Safety and Health at the Department of Labor, head
of the Occupational Safety and Health Administration
(OSHA), remained empty from the start of the Trump
administration. Consequently, still without leadership
during the COVID-19 pandemic, OSHA was unable to
craft new standards to address airborne infectious diseases, unresponsive to the urgent concerns for the
602
safety of healthcare workers, and slow to enforce antiretaliation protections for workers who spoke out
about the lack of protective equipment.7
Alternatively, interim appointees likely increase
responsiveness to the president’s preferences since they
are not subject to Senate confirmation. In reference to
his affinity for interim appointees, Trump remarked as
much: “I like acting [appointees] because I can move so
quickly, gives me more flexibility.”8 Viewing their
authority as similar to that of confirmed appointees
(O’Connell 2020), interim appointments offer presidents the flexibility to select individuals who the Senate
might not otherwise confirm. For example, Obama
appointed Vanita Gupta as Acting Assistant Attorney
General for Civil Rights, without submitting a nomination during her two-year tenure as the Republican-led
Senate was expected to reject it. Gupta, whose leadership was praised by her colleagues, successfully spearheaded the administration’s criminal justice reform
efforts. Furthermore, if drawn from long-term agency
employees, interim appointees may have more competence and expertise than do their Senate-confirmed
alternatives (Mendelson 2014; O’Connell 2009). For
instance, in 1996, Clinton appointed one of the Treasury’s leading tax experts, Donald Lubick, as Acting
Assistant Secretary of Tax Policy. Having served in
various positions throughout Treasury, including as
Assistant Secretary under Carter, Lubick successfully
navigated negotiations with House Republicans over
7
See https://edlabor.house.gov/media/press-releases/chairman-scottremarks-on-conference-call-on-worker-and-patient-safety-needs-forthe-next-coronavirus-package. Accessed July 20, 2020.
8
President Donald J. Trump, CBS “Face The Nation.” Interview
(February 3, 2019).
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Control without Confirmation: The Politics of Vacancies in Presidential Appointments
taxes and balancing the budget. The conflicting realities
of positions without confirmed appointees—where
empty posts promote inaction and interim appointees
offer more effective reactions—further indicate that
our theories of appointments need to incorporate a
more nuanced definition of vacancies.
A THEORY OF VACANCIES AND FILLED
APPOINTMENTS
Vacancies offer presidents an opportunity to pursue
diverging policy goals. Starting from this assumption, I
present a theory of appointments based on a model that
formalizes the president’s choice to fill a position or leave
it empty in an interbranch bargaining context. Here, due
to space constraints, I offer a stylized version of the
model and its intuition; the Online Appendix A presents
the formal treatment of the model and its solutions.
The model begins with a vacancy9 and has two stages
and two players, the president and the Senate. The first
stage mimics a decision-theoretic model as the president makes a sequence of decisions: first whether to
immediately fill the empty post with an interim and
then whether to submit a nominee for Senate confirmation. With the advantage of a first-mover, the president sets the reversion point for the Senate’s
confirmation strategy. In response, the Senate confirms
when the cost of that empty post or interim outweighs
any gains from returning a president’s nominee, albeit
only if one is submitted. In these decisions, both players
maximize utility in terms of Position Value (Viy), which
is exogenously determined and represents each PAS
position’s capacity to advance a player’s priorities for
the agency’s policy-making activities. Ultimately, Position Value and the anticipation of Senate confirmation
or rejection shape the president’s best response: maintain the vacancy as an empty position or interim
appointment or seek the Senate’s advice and consent.
Formally, the generalized utility functions for each
player i reflect the payoff for filling the position immediately (βτViy), the payoff for filling the position for the
long-term (βτγViy), and the bargaining cost (ci) of the
confirmation process such that uy = βτ(f,¬f )Viy +
βτ(f,¬f )γViy − ci.10 The sequence of game play is as
follows:
1. The president is presented with an empty position,
with value to the Senate ViS and to the president ViP.
The president observes ViS and ViP, chooses a strategy to fill with an interim appointee or leave empty,
and then to nominate or not.
2. If the president does not nominate, the game ends
with an interim appointee or empty position. Payoffs
are then allocated to both players.
3. If the president does nominate, the Senate chooses a
strategy to confirm or not. If the Senate chooses to
confirm, the game ends with a permanent appointee.
If the Senate chooses to not confirm, the game ends
with the reversion point from the president’s move
in the first stage, either an interim appointee or
empty position. Payoffs are then allocated to both
players.
Position Value, the key parameter that indicates the
capacity of the position in terms of controlling the
policy output of the position’s parent agency, is a
composite of Position Capacity and Policy Priorities.
First, the Position Capacity to control policy-making
activities institutionally constrains the extent to which
that position can advance each player’s policy priorities. Low-capacity positions are administrative or routine in nature, have little to no latitude, and generally
provide few opportunities to reach larger political
goals. Alternatively, positions with high policy-control
capacity require more expertise, have more room to
influence policy outcomes, and advance a larger political agenda. Second, Policy Priorities capture whether
the player prefers to expand, contract, or neutrally
maintain the agency’s status quo implementation, regulation, or policy-generating activities. Non-neutral,
expansion- or contraction-branded priorities, inherently require that the agency’s policy jurisdiction be
salient to the player’s larger policy agenda and classify
the player’s ideal direction of the agency’s actions.
Traditionally, when we theorize about appointees,
we begin with ideology and frame the choice of nominee in terms of ideological alignment with the president and the Senate. Previous work did not require a
position-centric approach as the focus was on the individuals filling the positions. Yet, we cannot attribute
appointee characteristics, like ideology, to empty positions. To examine the decision to leave a position
empty on the same footing as the decision to nominate,
we need to consider how the characteristics of positions
9
While there are potential non-random aspects of the datagenerating process behind vacancies, I black-box vacancy generation
and assume, for simplicity, that they are exogenous.
10
Here, Position Value (Viy) is weighted by three multipliers. First, β
indicates the effectiveness of the appointee (interim or permanent), if
a filled position, in achieving the full value of the position. The
president chooses appointees based on their level of effectiveness in
delivering the full position value, where an ineffective appointee
cannot deliver the high value of the position, which imitates the low
value of a low-capacity position. Second, τ indicates whether a
position is filled. Filled positions and empty ones differ, at a minimum, in terms of accountability and responsiveness. Empty PAS
positions, inherently, do not have a person to fulfill basic responsibilities like executing presidential directives. Lastly, γ indicates the
anticipated degree of congressional oversight that might restrict or
amplify the appointee’s ability to deliver the full realization of
position value. The evaluation of agency actions through oversight
either constrain policy changes (when the Senate and president do
not align in their priorities) or strengthen their legitimacy to vested
interest groups (when the Senate and president align). Specifically, γ
amplifies the realized position value when Senate and presidents
policy priorities align and decreases it when they do not. Additionally, confirmation negotiations are costly, albeit not necessarily
equally, to both the president and the Senate. These nonzero costs
(ci) are indexed to each player, incurred only when a nominee is
submitted, and assigned by Nature for each vacant position. While
several features of the confirmation process can be engineered to
decrease or increase bargaining costs, I assume that these adjustments occur outside the scope of the game.
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Christina M. Kinane
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FIGURE 2. Theory of Vacancies and Filled Appointments Outcomes
themselves lead to the outcomes of the appointment
process. Policy Priorities parallel policy preferences
captured by ideology, but at the agency level and in
terms of the actions necessary to move toward the
preferred new policy status-quo. To simplify this action
orientation, I classify Policy Priorities as falling into
three alternative categories: expansion, neutral, and
contraction. Though closely related to ideology, this
expansion-contraction dimension better captures the
central question that presidents face when deciding on
appointments: whether to expand an agency’s policy
making or constrict it.11 Thus, this new concept not only
allows us to think about how a position itself advances
the president’s or the Senate’s agenda; it does so in a
way that does not require the measures of appointee
ideology that are commonly used in studies that do not
look at presidents’ full range of strategic options in the
face of vacancies.
Interacting Position Capacity and Policy Priorities, a
position with high Position Value has a high capacity to
advance expansion and contraction policy priorities;
otherwise, the position has low value.12 Position Value
11
Here, expansion priorities broadly capture both preferences for
more action and policy output in the agency’s current direction as
well as expanded policy making associated with changing the
agency’s direction. An interesting avenue for future research will
be to disentangle these differences and more explicitly account for
variation in expansion priorities.
12
When a position is low-capacity, any appointee—interim or permanent—has minimal ability to affect policy outputs and the value of
that position to a player is nil, no matter their policy priorities.
Likewise, when a player does not prioritize the policy output under
the agency’s purview (i.e., neutral priorities) the value of the position
for advancing the player’s larger agenda is also nil, no matter the
position’s capacity level. Thus, to make the theory’s implications as
stark as possible, the value of an empty position is nonzero only when
a player prioritizes the agency’s policy jurisdiction and the position
has the capacity to achieve those priorities.
604
(“High
Value
[expansion],”
“High
Value
[contraction],” “Low Value”) creates the incentives
that drive the Senate’s choice to confirm a nominee,
and the president’s strategic choice to submit one, given
the Senate’s confirmation strategy. The combinations
of these strategies lead to any one of four outcomes, as
depicted in Figure 2: an empty position, a position filled
by an interim appointee with no action toward a permanent appointee, a position filled by a permanent
appointee, or a position filled by an interim and then
a permanent appointee. I employ subgame perfect
Nash equilibrium and solve the game via backwards
induction. The game follows a straightforward sequential structure and has a unique equilibrium.
Empirical Predictions
Critically, the conditions under which the president’s
best response is to leave vacant positions empty or fill
them with interim appointees must be examined in the
context of the alternative confirmed appointees. This
requires simultaneously identifying the conditions
under which the Senate confirms a nominee. While
the full set of optimal strategies for the Senate and
the president are detailed at length in Appendix A, this
section outlines the features that produce the empirical
expectations for our inquiry of why presidents choose
to leave certain vacant positions empty while filling
others with interim appointees.
To that end, we begin with the Senate’s confirmation
set.13 First, when the president and Senate both have
expansion Policy Priorities and the position has high
Position Capacity—a high-value (expansion) position—
the Senate will confirm the president’s nominee, in equilibrium, irrespective of the reversion point. Second, if the
13
See Lemma 1 in Appendix A.
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Control without Confirmation: The Politics of Vacancies in Presidential Appointments
Senate prioritizes contraction and the president prioritizes expansion for a high-capacity position, the
Senate will confirm if the position is filled with an
interim appointee. Under these circumstances, the
Senate is better off with the oversight from confirmation than with the appointee in an interim capacity
without it. Alternatively, when the Senate faces an
empty post as the reversion point, there is also an
oversight incentive to confirm, in equilibrium, if the
nominee is ineffective and the potential tenure is
sufficiently long to allow for oversight activities; otherwise, the Senate will confirm a relatively effective
nominee only if the potential tenure is sufficiently
short.14 Fourth, if the Senate supports policy expansion while the president prioritizes contraction and the
high-capacity position is empty, the Senate will confirm if the potential tenure is sufficiently small given a
relatively effective nominee. Lastly, the Senate confirms nominees to low Position Value positions, indicating either low Position Capacity or neutral Policy
Priorities.
Next, we consider the Senate’s rejection set.15 First,
the Senate prefers to not confirm the president’s nominee, in equilibrium, when the position is high capacity
and its contraction priorities align with those of the
president.16 Alternatively, if the president prioritizes
contraction while the Senate seeks expansion for a
high-capacity position, the Senate does not confirm
when facing an interim appointee.17 Lastly, if the reversion point is an empty post and the president offers a
relatively effective nominee, the Senate does not
14
When the Senate prioritizes policy contraction and the president
seeks expansion (V yS ¼ −1 and V yP ¼ 1), oversight of a confirmed
appointee, compared with the reversion point of an interim, offers an
avenue to limit the president’s influence and achieve more of the
Senate’s agenda, thereby amplifying the value of that position. But if
the reversion point is an empty position, the Senate will prefer
confirmation only if the president submits a sufficiently ineffective
nominee, as β ! 0 mirrors the ineffectiveness of a low-capacity
position. Higher levels of ineffectiveness further limit the influence
of the president, which complements the oversight of formal confirmation. Otherwise, if the president offers a more effective nominee
1
) the Senate would prefer to revert to an empty position.
(β > ∣γ∣
15
See Lemma 2 in Appendix A.
16
Appointees, however (in)effective, are assumed to minimally perform the position’s responsibilities. The ability of an appointee to
influence the agency’s performance is constrained by the cost (oversight, budgetary, or electoral/political) of actively and/or visibly
damaging agency performance. Government watchdog groups,
vested interests, client advocacy groups, and potential electoral
opponents have multiple methods of drawing attention to explicit
bureaucratic drift. An appointee’s actions are at least marginally
undesirable compared with leaving an empty position for players
who prioritize contracting policy. Thus, the Senate’s optimal strategy
to narrow an agency’s policy reach is to return a nominee if one is
submitted.
17
The strategy results, in large part, from the oversight cost associated with disparate policy priorities. Conceptually, oversight that
demands increased action requires more political capital and intervention than oversight that obstructs or delays agency actions. Thus,
the capacity to achieve the Senate’s expansion priorities diminishes
with increased requisite oversight (| γ | where γ < − 1), which decreases
the expected utility from confirmation and makes rejection the
preferred choice.
confirm the nominee when prioritizing contraction
while the president seeks expansion.
Given the Senate’s confirmation and rejection sets,
the president chooses the best response strategy for
vacancies and nominations.18 First, the president seeks
to submit a nominee only for high-value (expansion)
positions, but the choice to nominate hinges on the cost
to bargain with the Senate.19 As expected, the president’s first-mover advantage manifests as dictatorial
control over each type of vacancy. Importantly, empty
positions occur either when the president chooses not
to appoint an interim and not nominate or when the
president chooses to nominate without appointing an
interim but the Senate does not confirm. Anticipating
that, when the president prioritizes contraction, the
Senate will confirm a nominee for high-capacity positions if and only if it has neutral Policy Priorities
(V yS ¼ 0) and will reject nominees otherwise; the president prefers to avoid the bargaining cost by forgoing a
nomination and maintaining the empty position. That
is, when a president prioritizes policy contraction, positions with high levels of capacity will stay empty, in
equilibrium, as the president will neither appoint an
interim nor nominate a permanent appointee. Alternatively, interim appointees occur when the president
chooses to appoint one either without submitting a
nominee or with a nominee that the Senate does not
confirm. In equilibrium, a president with expansion
Policy Priorities will fill all vacant positions with interim
appointees, no matter the Senate’s priorities. In other
words, the president’s choice to fill a position immediately with an interim appointee (or not) does not
explicitly depend on the Senate’s confirmation
choice.20 From this, we arrive at two empirical predictions of when presidents leave vacant positions empty
or fill them with interim appointees, in terms of Position
Value:
H1. Empty Position Hypothesis: A president is more likely
to leave high-value positions empty when prioritizing policy
contraction.
H2. Interim Appointee Hypothesis: A president will
always immediately fill low-value positions with interim
appointees and is more likely to immediately fill high-value
positions with interims when prioritizing policy expansion.
18
See Lemma 3 in Appendix A.
The bargaining cost cut point (c∗P ) is largely driven by the Senate’s
value for permanence and oversight (γ). Thus, by setting a high value
of γ (e.g., speedy confirmation hearings), the Senate increases the
likelihood that the president’s bargaining costs will fall below the cut
point, thereby ensuring a nominee to confirm.
20
Since existing literature does not explicitly identify interim
appointees, we have few current expectations. However, we could
imagine that divided government—when conflicting policy priorities
across branches make confirmation difficult—or increased polarization—when conflicting policy priorities within the Senate make
collective action towards confirmation difficult—likely make an
interim appointee a more attractive option. In other words, the
likelihood of an interim increases if the president’s priorities conflict
with those of the Senate and as presidential policy agendas are
increasingly dominated by expansion priorities.
19
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Christina M. Kinane
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ANALYZING VACANCIES IN PRESIDENTIAL
APPOINTMENTS
To evaluate these expectations, I collected data on
positions’ statuses and their levels of capacity to control
policy output, as well as congressional and administration’s policy priorities, from 1977–2016 for PAS positions21 in all 15 Executive departments (Agriculture,
Commerce, Defense, Education, Energy, Health and
Human Services, Housing and Urban Development,
Homeland Security, Interior, Justice, Labor, State,
Transportation, Treasury, and Veterans Affairs). To
identify whether a position is filled or empty, and
specifically to differentiate between interim and permanent appointees, I rely on government published
directories of PAS positions. Together with a research
assistant, I digitized data from archived editions of the
quadrennial publication United States Government Policy and Supporting Positions (the Plum Book) and
archived annual editions of the United States Government Manual using optical character recognition software. Each of the government reports lists who is
occupying the position and whether they are an interim
appointee, or the position is empty, at the time of
publication.
Using these data, I constructed the three-category
Position Status to identify whether the PAS position is
empty, filled with an interim appointee, or filled with a
confirmed appointee.22 Of the 11,043 position-year
observations, 8,889 (80.5%) were filled by permanent
appointees, 1,165 (10.6%) were filled by interim
appointees, and 989 (8.96%) were left empty. Importantly, Position Status varies by partisanship and institutional control,23 which suggests that there are other
considerations beyond our traditional explanations—
perhaps, as I posit, differences in the value of the
position to the president and Senate—that influence
the decision to fill a position.
Policy Priorities. To operationalize Policy Priorities,
I need to identify whether the president and Senate
prefer to expand or contract the reach of an agency in
21
The analysis here excludes United States Marshals, United States
Attorneys, or United States Ambassadors because they can be
temporarily filled through varied processes and require a separate
examination beyond the scope of this project.
22
The discrete nature of the outcome variable—the single, yearly
interval for each PAS position—does not offer a complete picture of
all vacancies throughout each year. If observations of empty positions
or interim or permanent appointees not included due to this data
structure are systematic or widespread, then that could potentially
lead to biased findings. However, there is good reason to believe this
is not the case. An analysis of a continuous dataset for positions in the
Department of Labor from 1977 to 2003, constructed with the
inclusion of generously shared data from Anne Joseph O’Connell,
identifies the absence of a confirmed appointee with near perfect
accuracy: just one observation in my data was reported as a vacancy
when a permanent appointee was listed in the OPM data. This
considerable overlap suggests that systematic missingness in the
dependent variable is rather unlikely. (The O’Connell dataset contains employment records from 1977 to 2003 attained through a
FOIA request to the Office of Personnel Management (OPM) and
used in the analysis for O’Connell [2009)].)
23
See Appendix B for descriptive statistics.
606
the year of the observed position status. There are
various opportunities for each actor to reveal their
preferences. Scholars often control for the salience of
policy priorities in terms of mentions in the State of the
Union (e.g., Krause and O’Connell 2016) or frame
these priorities in terms of a legislative agenda (e.g.,
Beckmann 2010), but this theory requires a measure of
the direction of priorities for agency policy output
vis-à-vis the status quo.
Fortunately, the annual budget process requires
administrations and Congresses to take stock of each
agency’s current position relative to their ideal agency
activities, determine areas for change, and create quantitative measures of desired shifts in budgetary authority. Thus, I am able to identify expansion and
contraction policy priorities by using administration
budget requests and final appropriation levels. I compiled the requisite data on annual presidential budget
requests and previous years’ budget authority, for each
agency from 1977 to 2016, from the historical summary
tables that are located in the appendices of every fiscal
year edition of The Budget of the United States Government, archived by FRASER.24 I structure Policy
Priorities as a categorical variable identifying expansion, contraction, or neutral (maintaining the status quo
funding level given inflation) presidential and congressional policy priorities.
I measure presidential expansion priorities as budget
requests to increase an agency’s budget authority from
the average of the previous two fiscal years by an
amount that exceeds what would be required to maintain current levels given the annual rate of inflation.
The average of the previous two appropriations
smooths fluctuations in budget authority due to irregular spending from stimulus packages or new program
roll-outs or reductions from agency reorganizations or
program terminations. Conversely, presidential contraction priorities are budget requests to decrease an
agency’s budget authority from the average of the
previous two fiscal years. Similarly, congressional
expansion priorities are increases, larger than inflation,
in the congressionally approved budget authority from
the average of the previous two fiscal years, and congressional contraction priorities are decreases to an
agency’s budget authority from the average of the
previous two fiscal years.25 The remaining category of
neutral priorities indicates requests or approved budget
authority that maintains the same level of agency funding within the range of inflation.
24
United States. Bureau of the Budget and United States. Office of
Management and Budget. Budget of the United States Government.
1921–2018. https://fraser.stlouisfed.org/title/54.
25
Importantly, the congressional policy priorities constructed here
are not those of just the Senate. Budget authorizations must pass the
Senate, and, therefore, Senate priorities are reflected in any budget
authority. However, the realization of the Senate’s priorities is likely
constrained—in either direction—by the preferences of the House of
Representatives. This constraint would be particularly prominent if
the party leadership is divided between the House and the Senate,
and would have largest implications when the Senate majority is not
the president’s party. To control for these potential biases in my
analyses, I control for the co-partisanship of the Senate and president.
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Control without Confirmation: The Politics of Vacancies in Presidential Appointments
Position Capacity. To construct a measure of Position Capacity, I identified whether the responsibilities
of each PAS position in each agency were for agency
operations, policy development, policy implementation, inter- or intra-agency coordination, legislation
development, agency management and communications, or public relations, using position and agency
descriptions published in annual editions of the
Government Manual.
The positions that have clear responsibilities for
policy development, implementation, or explicit coordination among policy implementers carry the lion’s
share of the success or failure in achieving policy goals.
These positions include: agency heads (e.g., secretaries,
administrators, directors), general counsels, inspectors
general, and deputy or assistant secretaries that have
jurisdiction and responsibilities for policy direction and
implementation. Consequently, each of these position’s
Position Capacity level is high. Alternatively, positions
with low policy-control capacity are responsible for an
agency’s internal management or policies governing
agency operations, like assistant secretaries of administration. These roles certainly have important functions with respect to internal management and
operations, but they are coded here as low capacity
given the position’s low level of influence on the policy
direction of the agency. Similarly, positions with
responsibilities for relating information or maintaining
public relations (e.g., assistant secretaries for communication) and positions responsible only for research
and data collection without grant-making or policyrecommendation responsibilities (e.g., director of the
Bureau of Mines at the Department of the Interior)
also have little opportunity to influence the promulgation, enforcement, or implementation of the substantive rules that guide policy outcomes. Consequently,
these positions’ Position Capacity level is low.
Position Value. Lastly, I construct the categorical
variable, Position Value, as a function of Position Capacity and Policy Priorities. Specifically, a position is
“Low Value” when its level of Position Capacity is
low or Policy Priorities are neutral. A position is “High
Value (contraction)” or “High Value (expansion)”
when its Position Capacity is high and Policy Priorities
are contraction or expansion, respectively.
To examine the role that Position Value plays in a
president’s calculus to fill or not fill vacant positions and
test whether my theoretical expectations bear out
empirically, I rely on a discrete choice model of Position
Status as a function of Position Value. First, however, it
is important to establish the empirical consequences of
the keystone of my research: differentiating between
vacancies that are left empty and those that are filled
with interim appointees. The distributions reported in
Table 1 clearly demonstrate the significance of this
distinction. Here, under the conventional definition,
vacancies appear to be similarly distributed, accounting
for, on average, 19% of PAS positions in each category
of president Position Value. Moreover, we cannot
statistically differentiate among the distributions of
permanent appointees and vacancies across those categories. However, when we define vacancies more
precisely, substantively and significantly different distributions emerge.
Specifically, empty positions and interim appointees
vary considerably across the categories of president
Position Value. In particular, 11.2% of “High Value
(expansion)” positions are filled with interim appointees compared with 8.1% left empty, and 10% of
“High Value (contraction)” positions were left empty
compared with 9.3% with interims. In other words,
58% of vacancies in “High Value (expansion)” positions and 52% of those in“Low Value” positions were
filled with interim appointees, whereas 52% of
“High Value (contraction)” positions were left empty,
and we can statistically differentiate between these
percentages at a less than a 1% level. Recall, the Empty
Position Hypothesis predicts that presidents are more
likely to leave positions empty that are “High Value
(contraction)” and the Interim Appointee Hypothesis
posits that they are more likely to appoint interims to
positions that are “Low Value” and “High Value
(expansion).” Thus, without controlling for any other
factors, the distributions presented in Table 1 align with
my theoretical expectations.
To analyze the patterns that emerged from this nonparametric analysis in the context of a parametric
likelihood model, which allows for formal statistical
inference, I estimate multinomial probit (MNP)
models26 of Position Status, with robust standard
errors, and the key predictor variables: Position Value
for the president and for Congress and the interaction
between them. I control for whether the administration
is new and in transition or it is established—that is,
Established Administration indicates that the administration is no longer in its first year.27 Although the
months between election and inauguration are traditionally focused on assembling the top leadership in a
new administration, the sheer volume of vacant PAS
positions due to structural turnover likely explains at
least some of the variation in empty positions and
interim posts, outside of presidential strategic behavior.
Additionally, I control for whether the Senate majority
is the same party as the president (Co-Partisan Control), which likely affects the ease of confirmation that
makes permanent appointees more valuable. Lastly,
I control for vacancy procedural regimes,28 department, and administration fixed effects.29 Specifically,
as per Greene and Hensher (2010), the structural equation for the multinomial probit model is the following:
26
Given that MNP errors are distributed by a multivariate normal
distribution (Greene and Hensher 2010), which can facilitate comparisons between the position status alternatives and does not require
the independence of irrelevant alternatives (IIA) assumption, it is
most appropriate estimation strategy for this analysis.
27
The results presented below are robust to controlling for established term (when administrations are no longer in the first year of a
term), see Appendix B.
28
The regimes include the Vacancy Act until 1987, the Presidential
Transition Effectiveness Act of 1988, and the Federal Vacancies
Reform Act of 1998.
29
Position fixed effects are not included due to overspecification
concerns, as such effects are implicitly captured by Position Capacity,
which is position specific and largely time invariant.
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Christina M. Kinane
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TABLE 1.
Distributions of Permanent Appointees and Vacancies
Percentage of vacant
PAS positions
Percentage of PAS positions
Permanent
appointees
Vacancies
80.7%
19.3%
8.1%
80.8%
19.2%
79.7%
20.3%
High Value
(expansion)
High Value
(contraction)
Low Value
President
Position
Value
N = 11,043
χ2 = 1.3563, p = 0.508
Empty
Interim
positions appointees
Empty
positions
Interim
appointees
11.2%
41.9%
58.1%
9.9%
9.3%
51.8%
48.2%
9.7%
10.6%
47.8%
52.2%
N = 11,043*
χ2 = 16.8298, p = 0.002
N = 2,154
χ2 = 15.6400, p = 0.000
*Note: N includes permanent appointees, empty positions, and interim appointees.
U yjt ¼ αyjt þ βV P V 0Pyjt þ βV C V 0Cyjt þ βV PxC V 0Pyjt V 0Cyjt þ
γ1 EA0t
þ
γ2 CP0t
þ
γ3 R0t
þ
γ4 D0j
þ
γ5 A0t
þ ε,
(1)
such that
Pr yjt ¼ Sm ¼ PrðuSm > uSk ∀m 6¼ kÞ
for
8
>
<0 )
S1m 1 )
>
:
2)
Empty
Interim Appointee
Permanent Appointee,
where
S1 is the status of a position yjt in department j for year t,
which indicates whether it is empty, filled with an interim
appointee, or filled with a permanent appointee;
V Pyjt is Position Value for the president;
V Cyjt is Position Value for Congress;
V Pyjt V Cyjt is the interaction between the Position Value for
the president and Congress, as driven by my theoretical
expectations;30
EAt and γ1 represent Established Administration and its
effects;
CPt and γ2 represent Co-Partisan Control of the Senate
and its effects;
Rt is procedural regime fixed effects;
Dj is department fixed effects;
At is administration fixed effects;
and ε represents the multivariate normally distributed errors.
30
Critically, while the decision to fill a vacant position with an interim
appointee or leave it empty lies unilaterally with the president, the
observed outcomes include confirmed appointees, which require the
Senate’s consent. The categories of Position Status are mutually
exclusive, making the probability of observing any one of the categories disjoint but dependent on the other categories. Thus, as one
of those categories (permanent appointee) is conditioned on the
interaction of the president’s Position Value and the Senate’s Position
Value, the likelihood of Position Status is modeled as a function of
that interaction.
608
FINDINGS
Overall, the results indicate that Position Value significantly contributes to the likelihood of both an empty
position and interim appointee. However, since parameter estimates from MNP models display the multinomial
log odds relative to the base category and coefficients for
categorical variables are relative to the omitted category,
their interpretation can be a bit onerous. Thus, I center
the discussion and results presentation on the substantively interpretable predicted probabilities, with full
results reported in Appendix B. Table 2 reports the
predicted probabilities of each position status for each
category of the explanatory variables, with all other
variables at their means. For visual ease, Figure 3 presents the predicted probabilities of empty positions and
interim appointees for each category of president’s Position Value, the variable at the core of each hypothesis.
H1. Empty Position Hypothesis
Given the Empty Position Hypothesis, we would
expect to find a higher predicted probability of empty
positions when president Position Value is “High
Value (contraction)” than otherwise. As the last
column in Table 2 reports, indeed, empty “High Value
(contraction)” positions are more likely, with a predicted probability of 7.8%, than empty “High Value
(expansion)” positions (6.9%) and even more likely
than empty “Low Value” positions (6.2%). However,
we cannot statistically differentiate between them,31
which is evident from their overlapping confidence
intervals, displayed in Figure 3. Consequently, these
comparisons within Position Status categories offer
little support for the Empty Position Hypothesis.
Importantly, however, if we simultaneously consider
the general expectations of the Empty Position and
Interim Appointee Hypotheses, as discussed below, we
then turn to examine comparisons across Position Status which ultimately present more supportive results.
31
Pairwise comparison (PWC) is statistically insignificant (p = 0.216).
Control without Confirmation: The Politics of Vacancies in Presidential Appointments
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TABLE 2.
Predicted Probabilities of Position Status Outcomes
President Position Value
Congress Position Value
Established Administration
Co-partisan Control
Procedural Regime
Permanent appointee
Interim appointee
Empty position
0.836 (0.006)
0.840 (0.008)
0.846 (0.01)
0.835 (0.006)
0.861 (0.008)
0.826 (0.012)
0.599 (0.013)
0.866 (0.004)
0.837 (0.010)
0.841 (0.007)
0.847 (0.023)
0.851 (0.011)
0.830 (0.011)
0.095 (0.005)
0.082 (0.006)
0.093 (0.008)
0.095 (0.005)
0.079 (0.006)
0.095 (0.01)
0.14 (0.009)
0.082 (0.004)
0.088 (0.007)
0.093 (0.003)
0.077 (0.017)
0.079 (0.008)
0.104 (0.009)
0.069 (0.004)
0.078 (0.006)
0.062 (0.006)
0.070 (0.004)
0.06 (0.006)
0.079 (0.008)
0.261 (0.012)
0.053 (0.003)
0.074 (0.006)
0.066 (0.005)
0.077 (0.018)
0.070 (0.008)
0.066 (0.007)
High Value (expansion)
High Value (contraction)
Low Value
High Value (expansion)
High Value (contraction)
Low Value
New administration
Established administration
Divided control
Co-partisan control
Vacancy Act
Transition Effectiveness Act
FVRA
Note: Table entries are the predicted probabilities of each position status given the specified row variables. Standard errors in parentheses.
Explanatory variables were held constant at their mean values.
H2. Interim Appointee Hypothesis
Given the Interim Appointee Hypothesis, we would
expect to find higher predicted probabilities of interim
appointees when president Position Value is “Low
Value” and “High Value (expansion),” than “High
Value (contraction).” And this is indeed what we find.
The second column in Table 2 reports, as expected,
interim appointees are more likely in “High Value
(expansion)” positions, with a predicted probability of
9.5%, than in “High Value (contraction)” positions,
with a predicted probability of 8.2%.32 Also as
expected, interim appointees have a higher predicted
probability of filling “Low Value” positions (9.3%)
than “High Value (contraction)” positions; however,
we cannot statistically differentiate between the predicted probabilities (p = 0.277).
Critically, when we turn our attention to differences
across Position Status, an even clearer picture emerges.
Taken together, the Interim Appointee and Empty Position Hypotheses produce the expectation that vacant
positions are more likely to be filled by interim appointees than left empty when president Position Value is
“High Value (expansion)”or “Low Value.” As Figure 3
clearly illustrates, this is exactly what we find. Namely,
interim appointees are significantly more likely than are
empty positions under the “High Value (expansion)”
category of president Position Value.33 In fact, when
presidents prioritize expansion, high-capacity vacant
positions are over 37% more likely to be filled by interim
appointees than left empty. Also as expected, “Low
Value” positions are over 52% more likely to be filled
with interim appointees than left empty.34
Additional Findings
not significantly more likely under co-partisan control
than under divided control.35 This result is surprising
because we would expect from previous work on
appointees, ideology, and confirmation delay (e.g.,
McCarty and Razaghian 1999) that confirmed appointees would be significantly less likely under divided
control. Instead, when we account for vacancies and
include the capacity of the position to achieve policy
priorities, permanent appointees are not any more
likely when the Senate majority party is the same as
the president’s party than when it is not. Second,
interim appointees are significantly more likely in
new administrations in their first year, with a predicted
probability of 14%, than in established ones (8.2%).36
But established administrations are significantly more
likely to have interim appointees than empty positions.37 Recall that Figure 1 shows that presidents
inherently experience fewer vacancies outside of their
first, transition year. These results suggest that experienced presidents are more likely to fill those fewer
vacant positions with interim appointees than to leave
them empty.
Lastly, with each reform to the procedural regime
governing vacancies, vacant positions are increasingly
more likely to be filled with interim appointees than left
empty. Under the Vacancy Act, interim appointees and
empty positions are equally likely, as their predicted
probabilities are statistically indistinguishable. After
the Presidential Transition Effectiveness Act of 1988,
interim appointees are marginally more likely than
under the Vacancy Act; however, they become even
more likely than empty positions. Moreover, under the
FVRA, interim appointees are more likely than under
previous regimes and significantly more likely than
empty positions.38 Critically, however, when we
The controls included in this analysis also offer three
interesting findings. First, permanent appointees are
35
32
PWC significant at the 10% level (p = 0.090).
33
PWC significant at the 1% level (p = 0.000).
34
PWC significant at the 1% level (p = 0.002).
PWC insignificant (p = 0.680).
PWC significant at the 1% level (p = 0.000).
37
PWC significant at the 1% level (p = 0.000).
38
PWC significant at the 1% level (p = 0.002).
36
609
Christina M. Kinane
President Position Value
High Value (expansion)
High Value (contraction)
Low Value
0
0.05
0.1
Predicted Probability
Position Status
Empty Position
Interim Appointee
FIGURE 4. Adjusted Predictions of the Probability of Empty Positions and Interim Appointees, Given
President Position Value and Vacancy Procedural Regime
.14
.12
Procedural Regime by Position Status
Predicted Probability
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FIGURE 3. Adjusted Predictions of the Probability of Empty Positions and Interim Appointees, Given
President Position Value
.1
Empty Position:
Vacancy Act (1977-1987)
Transition Effectiveness Act (1988-1997)
FVRA (1998-2016)
.08
.06
Interim Appointee:
Vacancy Act (1977-1987)
Transition Effectiveness Act (1988-1997)
FVRA (1998-2016)
.04
.02
0
Low Value
High Value
(contraction)
High Value
(expansion)
President Position Value
evaluate the predicted probabilities over these vacancy
procedural regimes given president Position Value, as
displayed in Figure 4, important variation emerges.
While interim appointees and empty positions are,
overall, equally likely before 1988, we can statistically
differentiate them within “High Value (contraction)”
positions—which have a significantly higher predicted
probability of being left empty (7.7%) than filled with
610
an interim (5.2%).39 Similarly, interim appointees are
more likely than empty positions under the FVRA, but
the differential is much starker for “High Value
(expansion)” and “Low Value” positions than “Low
Value (contraction)” ones. Clearly, these dimensions
39
PWC significant at the 1% level (p = 0.009).
Control without Confirmation: The Politics of Vacancies in Presidential Appointments
Post-FVRA (1998-2016)
Pre-FVRA (1977-1997)
President Position Value
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FIGURE 5. Adjusted Predictions of the Probability of Empty Positions and Interim Appointees, given
President Position Value
High Value
(expansion)
High Value
(contraction)
Low Value
0
0.05
0.15
0.1
0
0.05
0.1
0.15
Predicted Probability
Position Status
Empty Position
Interim Appointee
Note: The predicted probabilities are estimated using the MNL regression results reported in Appendix Table B4, which model the likelihood
of Position Status as a function of Position Value separately on the observations in the pre-FVRA period (1977–1997) and the post-FVRA
period (1998–2016).
warrant additional consideration, particularly given the
pronounced patterns before and after the FVRA, and
the next section details this examination.
Examining Position Status, Before and After
the FVRA
Each appointee—no matter their effectiveness—is
constrained by the limited time they are able to serve.
Ultimately, each additional day presents appointees
with a wider window of time to achieve the administration’s policy and political objectives. As outlined
previously, interim appointees after the passage of the
FVRA can serve nearly six times longer than those
before. If we suppose that these extended terms make
interim appointees a more attractive option for advancing policy priorities, then we would anticipate the
FVRA to amplify our expectations of when presidents
choose to fill vacant positions with them. That is, we
would expect higher likelihoods of interim appointees
in “High Value (expansion)” and “Low Value” positions in the post-FVRA regime than in the pre-FVRA
regime. I estimate the MNP model specified above40
separately on the set of position-year observations
from the pre-FVRA regime (1977–1997) and those
from the post-FVRA regime (1998–2016).41
40
However, without vacancy procedural regime fixed effects.
See Tables B4 and B5 for full results and corresponding predicted
probabilities.
41
H1. Empty Position Hypothesis
Given the Empty Position Hypothesis, we expect
higher predicted probabilities of empty positions under
“High Value (contraction)” than otherwise, which is
exactly what we find under the pre-FVRA regime.
As Figure 5 clearly illustrates, before the FVRA
“High Value (contraction)” positions have the highest
predicted probability of being empty (9.1%) and are
statistically distinguishable from “Low Value” and
“High Value (expansion)” positions.42 More striking,
however, is a comparison between the predicted probabilities of interim appointees and empty positions
within the “High Value (contraction)” category. Here,
empty positions are significantly more likely than
interim appointees (4.6%).43 While the patterns
reverse under the post-FVRA regime, these results
show that there is strong support for the Empty Position
Hypothesis under the pre-FVRA regime.
H2. Interim Appointee Hypothesis
Given the Interim Appointee Hypothesis, we expect
higher predicted probabilities of interim appointees for
“High Value (expansion)” and “Low Value” positions
than otherwise. Figure 5 presents strong evidence for
the Interim Appointee Hypothesis under both the preand post-FVRA regimes—a result foreshadowed by
the robust results from the earlier likelihood analysis.
42
PWC significant at the 1% (p < 0.003) and 5% (p < 0.051) levels,
respectively.
43
PWC significant at the 1% level (p = 0.000).
611
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Christina M. Kinane
Clearly, under the pre-FVRA regime, the likelihood of
interim appointees is significantly higher for “High
Value (expansion)” positions—with a predicted probability of 7.8%—than for “High Value (contraction)”
positions—with a predicted probability of 4.6%.44 In
other words, before the FVRA, interim appointees are
70% more likely in vacant high-capacity positions under
expansion priorities than under contraction ones.
Notably, again, Figure 5 displays a more striking
result for interim appointees and empty positions
within Position Value categories. Although we cannot
statistically differentiate between the likelihoods of
interim appointees across the categories of president
Position Value under the post-FVRA regime, we can
very clearly differentiate between them within these
categories. Specifically, after the FVRA, the predicted
probabilities of an interim appointee are significantly
higher than those of empty positions within “High
Value (expansion)” and “Low Value” categories—
11.5% and 13.6% compared with 6.1% and 6.7%,
respectively.45 That is, when presidents have expansion
priorities, high-capacity positions are more than twice
as likely to be filled by interim appointees than left
empty—which offers very strong evidence for the
Interim Appointee Hypothesis. Figure 5 also shows
that interim appointees have higher predicted probabilities than empty positions within “High Value
(contraction),” which does not align with expectations
from the Empty Position Hypothesis or the Interim
Appointee Hypothesis. Even so, the higher likelihoods
of interim appointees under the post-FVRA regime—
higher still than the likelihoods under the pre-FVRA
regime—emphasize the influence, as expected, of the
Federal Vacancies Reform Act on how Position Value
captures the strategic value of interim appointees.
CONCLUSION
In this article, I show that frequent and sustained vacancies are not by chance or the mechanical byproduct of an
elaborate appointment process. Rather, they result from
strategic choices that presidents make to advance their
policy agenda. Specifically, interim appointees are significantly more likely to fill high-capacity positions when
presidents seek to expand an agency’s policy reach, as
predicted by the theoretical framework also discussed
here. Also as predicted, the empty positions are significantly more likely among high-capacity positions when
presidents prioritize contracting agency action, albeit
only in the pre-FVRA period. While the likelihood of
a position left empty is not as strongly correlated with the
president’s contraction priorities across the entire
period, this result could be driven by the concentration
of empty positions within departments. These likelihood
models estimate the probability that any one position is
empty; they do not address the incidence of empty
positions within a department. Furthermore, the
44
45
PWC significant at the 1% level (p = 0.003).
PWC significant at the 1% level (p = 0.000).
612
generality of the theoretical hypotheses allow for considerations of both likelihood and incidence of empty
positions and interim appointees within departments.
Since congressional and presidential policy priorities
correspond to each department, we would expect a
larger number of empty positions when presidents prioritize contraction and a larger number would be filled
with an interim when the president prioritizes expansion. In fact, an analysis outside the scope of this paper—
of the aggregated counts of position status—shows that
contraction policy priorities do increase the number of
empty high-capacity positions.
The broadest implication of this research stems from
its correction of the standard view that vacancies are
simply arbitrary miscalculations within the appointment process. By treating vacancies as footnotes, rather
than as marked features of presidential appointment
strategy, existing research and policies have fundamentally disregarded the role that each type of vacancy has
to play. This research illustrates that scholars and
politicians have misunderstood the realities of PAS
positions without Senate-confirmed appointees. In particular, our previous understanding completely overlooked the fact that empty positions and interim
appointees are two different outcomes and each presents distinct opportunities to pursue diverging policy
priorities. Furthermore, we mistakenly have assumed
that presidents would unfailingly pursue formal nominations and that, however stalled by institutional
forces, PAS positions would always be filled by
Senate-confirmed appointees. This study clearly documents that vacancies are not the aberration we thought
they were, demonstrates that empty positions and
interim appointees are separate consequences of strategic decisions, and presents the first error correction of
its kind on the politics of vacancies.
Now that we have a more precise picture of vacancies
and permanent appointments, we can more accurately
consider the implications of those outcomes for bureaucratic performance and accountability. Since we
had not previously differentiated between empty positions and interim appointees, our understanding has
been restricted to the effects of different characteristics
of permanent appointees (e.g., Gallo and Lewis 2011;
Lewis 2008) or the organization of those appointments
(e.g., Krause, Lewis, and Douglas 2006; Wood and
Lewis 2017) on performance. We now know that the
prevalence of interim appointees and empty positions
offers considerable opportunities for each to shape
agency performance. Thus, while we have evidence
that the absence of confirmed appointees clearly
shapes agencies’ ability to accomplish certain objectives (e.g., Bolton, Potter, and Thrower 2015), future
work might explore how agency performance differs
under each type of vacancy.
Altogether, there is clear evidence that presidents
are strategically using interim appointees to advance
their policy priorities. These findings, and the theory
motivating the analysis, suggest some important considerations for future work on the politics of presidential appointments and separation of powers. First, this
research motivates expanding beyond ideology.
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Control without Confirmation: The Politics of Vacancies in Presidential Appointments
Ideological alignment is just one element in the basket
of what presidential appointments, bureaucratic and
judicial alike, can deliver. When we entertain what
the president and the Senate are looking to achieve
from agency actions more broadly, we can generalize to
consider the value of the position itself for advancing
that policy agenda and how effectively appointees can
deliver the positions’ full value. Moreover, the more
nuanced definition of vacancies motivates new considerations of whether oversight of agency (in)action varies
with vacancies. Examining whether presidents suffer political costs for their decisions to not nominate and not
appoint, and how Congress seeks to control an Executive
Branch led without Senate confirmation, would be valuable for understanding the balance of power in the policymaking process. Ultimately, this study seeks to shift our
focus toward the opportunities to consolidate political
power by avoiding—or even perhaps “voluntarily relinquish[ing]”46—formal, institutionalized ones.
Lastly, this paper draws new attention to how empty
positions and interim appointees did not dissipate in the
period after the passage of the FVRA. Critically, the
FVRA was intended to create incentives for presidents
to submit nominees for Senate confirmation. The stipulations of who can legally serve as an interim appointee
were designed to restrict the use of interims, while the
tenure extensions were intended to ensure continuity in
leadership and agency productivity (Hogue 2017). The
results presented here—while they do not allow for
causal inference—suggest that the FVRA has not
achieved its objectives. Instead, we can easily imagine
that if presidents intend to use interim appointees
exclusively, they might take full advantage of the deadlines that extend the interim tenures under the
FVRA.47 In recognizing the strategic potential of
vacancies and explicitly incorporating empty positions
and interim appointees into presidential appointment
strategy, the findings presented here urge consideration of how future reforms might ultimately encourage
these outcomes. In doing so, this research has widespread implications for our understanding of whether
reforms to the nomination process—which are necessary to safeguard the Senate’s constitutional prerogative of advice and consent—will achieve their desired
results. Executive politics scholars claim that the Senate’s refusal to confirm appointments damages the
president’s ability to exercise his authority and execute
the law. However, this study reveals that, when presidents use interim appointments, they capitalize on their
first-mover advantage to subvert the Senate’s power to
refuse confirmation.
46
Justice Clarence Thomas noted in his concurring opinion for
NLRB v. SW General, Inc. that “the Senate voluntarily relinquished
its advice-and-consent power in the FVRA does not make this
end-run around the Appointments Clause constitutional” (580 U.S.
Supreme Court (2017).
47
For instance, presidents might submit nominees who are not
attractive for immediate Senate confirmation in order to pause the
interim appointees’ tenure limits for as long as possible, or they might
maximize the interim tenure by submitting a nominee on the last day
(most likely the 210th day) of the interim appointee’s legal term.
SUPPLEMENTARY MATERIALS
To view supplementary material for this article, please
visit http://dx.doi.org/10.1017/S000305542000115X.
DATA AVAILABILITY STATEMENT
Replication materials can be found on Dataverse at:
https://doi.org/10.7910/DVN/GYEGW4.
ACKNOWLEDGEMENTS
Previous versions of this article were presented at the
2018 annual meeting of the American Political Science
Association and the 2019 annual meeting of the
Southern Political Science Association. I would like to
thank Charles Shipan, Jacob Hacker, Anne Joseph
O’Connell, Arthur Lupia, Rocìo Titiunik, Richard Hall,
John Jackson, David Lewis, George Krause, Jon
Rogowski, Lawrence Rothenberg, Sean Gailmard,
Kenneth Lowande, Nina Mendelson, Elizabeth Mann
Levesque, Alexander Furnas, Kiela Crabtree, Jesse
Crosson; workshop and seminar participants at the
University of Michigan, University of Chicago Harris
School of Public Policy, Harvard University, and Yale
University; and four anonymous reviewers for their
helpful comments and suggestions. Special thanks to
Jacob Wellner for his outstanding research assistance as
well as Cory Hendrickson for his help with the project.
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