October 4, 2016
Robert Rizzi, Partner and Dianna Mullis, Associate, Steptoe & Johnson, LLP
This post is part of a series on lessons learned from past presidential appointments. We’re grateful for the expertise of Robert Rizzi & Dianna Mullis of Steptoe & Johnson, LLP in developing this series.
One of the best ways to highlight the issues and pitfalls in the vetting process for presidential appointments is to examine case studies in which seemingly qualified individuals ran into issues that eventually derailed their nominations.
Some of these examples are well-known and have even become part of our vernacular. The lasting legacy of Judge Robert Bork’s unsuccessful 1987 nomination to the Supreme Court is the verb “to bork,” which the dictionary defines as “to attack systematically, especially in the media.” Other examples are less well-known, but should serve as teachable moments for future nominees. Examining a few of these case studies, and highlighting the problems encountered and lessons to be learned may help those nominees avoid problems in the months to come.
Lesson #1: The pitfalls are not always predictable
It is important to emphasize that many nominations have failed because of problems that had not been anticipated or previously had not been issues of concern. This has occurred because vetting standards are in a constant state of flux, with changing norms causing certain issues to increase or sometimes decrease in importance. The inability to predict all potentially significant vetting issues is one of the many factors that creates anxiety among nominees and their advisors, as well hurdles for administrations as they try to staff their agencies and departments with political appointees.
The Zoe Baird case is a vivid example of this phenomenon. Before Baird’s nomination, there had not been a “Zoe Baird problem.” Baird had been a successful lawyer in private practice and the general counsel of a major insurance company when President-elect Bill Clinton asked her in 1992 to be the first woman attorney general.
At that time, the question of whether a nominee had made payroll tax payments with respect to a family’s child care provider (nanny) had never been raised for a Cabinet nominee, perhaps because almost all of such nominees had been men. Indeed, to this day, the obligation to pay nanny taxes is still honored only in the breach. A 2006 study indicated that more than 80 percent of taxpayers did not make payroll tax payments for their nannies and other household employees. This is well after changes to the tax code that made the nanny tax an explicit obligation.
For Baird, the nanny tax and related immigration issues for the person who cared for her small children were first disclosed to the Senate Judiciary Committee on Jan. 5, 1993, two weeks before the committee began confirmation hearings. Neither the Senate staff nor the Clinton presidential transition team anticipated the negative reaction, which came largely from public opinion as opposed to any objection from the Republican minority. That reaction was summed up in a lead editorial in the New York Times that the administration “didn’t get it.” The common wisdom soon became that a failure to pay nanny taxes or to comply with associated immigration requirements reflected a view that the political elites were above the law.
Whether or not this populist fervor was the driver in the failed Baird nomination is certainly subject to question, especially in light of the widespread noncompliance among the general population with both nanny taxes and immigration requirements for domestic employees. Nonetheless, once this precedent was established, it became a key hurdle in executive branch vetting. Regardless of how the vast majority of the American public deal with nanny taxes, today’s nominees must demonstrate that they have complied with all of their nanny tax requirements.
For further discussion of precedents, authorities and case studies in the vetting process, see the Presidential Appointments Vetting Guide prepared by the Partnership’s Center for Presidential Transition in collaboration with Allen & Overy and Steptoe & Johnson.Read Part 2Read Part 3Read Part 4Read Part 5Read Part 6