The Democrat-led Senate has voted to exercise the so-called “nuclear option.” This means that President Obama’s nominees for federal judgeships and other high offices can now be approved by a simple majority vote of the Senate, instead of the 60 percent required to overcome a Republican filibuster under the old rules. This will make it easier for the president and his allies to fill empty offices.
The Republicans and their supporters are howling in anger, of course. Not surprisingly, when Republicans held the presidency, similar proposals by the senate GOP made the Democrats howl. But the same rules apply either way, so we have to consider the policy issue rather than our preferred winner in today’s version of the debate.
And the truth is, under the Constitution a simple majority of the Senate should be enough to approve a president’s nominations for executive and judicial offices.
Under the Constitution, judges and other high-level officers are appointed through this process: the president nominates; the senate gives its “advice and consent”; and the president appoints.
The senate is always free to refuse to consent to an appointment. If a majority of the Senate votes against the nominee, the nomination is dead and the president must find someone else.
But what if the senate simply fails to act?
The president cannot make the appointment until the senate gives its consent. And he has not received the signal to go after Plan B until the senate votes “no.” As long as the senate takes no action, the nomination hangs in limbo and the office sits empty.
This can happen in different ways. If the senate is controlled by the opposition party, a presidential nomination can just be left to sit in committee, without a hearing or a decision. If the senate is controlled by the president’s party, as it is now, then under the old rules the opposition party could filibuster, a parliamentary technique that requires a 60-vote majority for a decision.
Both of these are wrong.
The Constitution never contemplated major offices sitting vacant for extended periods because of political infighting. The issue of how the Senate would give its “advice and consent” did not receive much attention in the constitutional convention of 1787, the ratification debates, or the Federalist Papers. It seems clear, however, that the American founders viewed the nomination and confirmation process as seamless. Nothing in the text or history suggests that the process could just grind to a halt after the president’s nomination. The founders assumed that national offices would be filled.
The senate has a constitutional duty to act on presidential nominations. If the opposition can gather enough votes to defeat the nomination, then the president will have to find someone else. But if a majority of the senate approves, the appointment should go forward.
Of course Republicans will dislike many Democrat nominees, and Democrats will dislike many Republican nominees. But elections have consequences. A victorious president has the power to fill vacant executive and judicial offices. The senate’s role is a check against nominees who are truly unqualified or who have moral or ethical issues that make them unfit for office. The senate is not supposed to substitute its vision of governance for the president’s – at least not unless there are 51 votes to oppose him.
The filibuster as a tool in lawmaking is a completely different animal. It is a parliamentary rule that creates a presumption against the enactment of too many new laws by requiring the senate to have supermajority agreement. Not passing a statute is always a possible outcome, and often the best possible outcome.
Nominations are different. Not filling important offices at the highest levels of government is not an acceptable outcome. The senate owes the nation an up-or-down vote on all the president’s nominations within a reasonable period of time for hearings and due diligence.
Both parties are guilty of abusing the advice and consent process. Many of President George W. Bush’s nominees for the federal Courts of Appeals sat in limbo for years because the Democrat-controlled Senate refused to give them hearings. It was wrong then, and it is wrong now.
It is time for the United States Senate to fish or cut bait. The “nuclear option” – simple majority votes on presidential nominations – is a policy whose time has come.
Bradley P. Jacob is an Associate Professor of Law at Regent University in Virginia Beach, VA. He is a former Executive Director/CEO of the national Christian Legal Society.