Advice and Consent:  The Role of the Senate in Political Appointments

Cheri Pierson Yecke
March 28, 2005

Americans have a strong sense of fairness and expect the people who represent them in Washington to act in a fair and evenhanded manner. Unfortunately, some in the U.S. Senate are thumbing their noses at the concept majority rule by using the filibuster to block votes on the President's judicial nominations.
Most people's knowledge of the filibuster comes only from the movie Mr. Smith Goes to Washington. In this classic movie, Jefferson Smith (played by Jimmy Stewart), holds the Senate floor for 23 hours to prevent a vote on legislation. Historically, this is how a filibuster against legislation has worked: Senators who object to specific legislation hold the floor via a filibuster to prevent a vote. To stop a filibuster, 60 Senators must vote for cloture - that is, to close debate. Once debate is closed, then a vote can take place.

But what happens when a filibuster is used not to prevent a vote on legislation but to prevent a vote on a Presidential nomination? Imagine that a majority of Senators (51) want to confirm a nominee, but the minority party disagrees with the nominee's ideology and decides to use the filibuster to prevent a vote. A vote could be taken to end the filibuster - but 60 Senators would have to agree. In other words, the will of the majority would be thwarted by the procedural maneuverings of the minority.

This is not what our founding fathers intended, but since 2003, this is what has been taking place in the U.S. Senate.

Article II of the Constitution, in Section II, Clause 2, states that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…." In other words, two separate branches of government have separate and distinct functions: The President has the authority to nominate and then appoint federal personnel, including judges, after the Senate provides "advice and consent." Members of the Senate have understood that their role here is separate and apart from its legislative duties, and even has a separate executive calendar for considering Presidential nominations.

To understand what the founding fathers meant by "advice and consent" we need look no further than the Federalist Papers. Alexander Hamilton wrote that the role of the Senate in this regard was "an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters…." In other words, the Senate would be a check against nepotism or cronyism, ensuring that nominees are qualified for their jobs. An Attorney General opinion from 1837 confirms this view, as it stated that the Senate's role "is confined to the simple affirmation or rejection of the President's nominations…." Historical precedent was such that it wasn't until 1925 that the first Supreme Court nominee appeared before the Judiciary Committee. Up until that time, the Senate generally gave a simple up or down vote on the President's nominees.

Compare this to the tactics being used since 2003, where the filibuster is being used to obstruct judicial nominees from ever getting a vote. For most of our country's history, if a Senator did not want to confirm an appointee, he or she would simply vote against that person. However, Senate Democrats have now expanded the role of the filibuster from an instrument intended to prevent votes on legislation to an instrument to prevent votes on nominations which have support of the majority of the Senate.

According to Senate majority leader Bill Frist: "Under the Constitution, the Senate has a confirmation veto. A majority can vote a nominee down. But obstruction by filibuster is veto by a minority. Never did the Framers envision that anti-democratic outcome."

How can we return to original intent? It may be as simple as calling into question the constitutionality of using the filibuster and cloture rules for nominations, as opposed to legislation. Should a Senator call for a ruling from the chair, the presiding Senator (or president pro-tempore of the Senate, Vice-President Dick Cheney), would rule that the filibuster/cloture practice is not appropriate for nominations. If a member of the minority party challenges that ruling, the issue will be put to a vote - and all that is needed to uphold it is a simple majority.

This solution, called "the nuclear option" by some and "the constitutional option" by others, would restore majority rule to the Senate and break the obstructionism that has prevented qualified nominees from getting a vote.

Qualified nominees deserve to be given a vote based upon the credentials they bring to the office, not denied a vote due to ideological differences. It is time to end this partisan practice.