The Senate should reform "advice and consent"

8/30/2013 09:19:00 AM
The US government is severely understaffed. So far, 86 percent of President Obama's nominees have been filibustered, even though any of them could easily get a majority vote on the floor--and the ones who make it past filibuster usually get more than 90 percent of the vote! In total, the Obama administration has 140 nominees awaiting Senate confirmation, hopelessly log-jammed in the disappointing failure that is the US Senate. That's not even including countless other vacant federal offices, where the administration didn't even bother to nominate someone, because it would only further bog down the nominations process. These aren't low level bureaucrats either. Come September, there will be no one in charge of the Department of Homeland Security--even as we contemplate war with Syria--because both the Secretary and her second-in-command will be gone by Tuesday.

Oh, and don't even bother suing the Senate over this truly criminal dereliction of their constitutional obligations. They have you beat: they won't confirm any judges to hear your case! In total, more than 10 percent of the federal judiciary is empty because of Senate filibusters. And unlike some of the executive offices, judicial nominations weren't part of the filibuster deal that Reid and McConnell made last month.

So here's what I prescribe for this malady: abolish the senate confirmation process. If you read the constitution, nowhere does it say that Presidential appointments shall each be subject to a Senate confirmation vote. Here's Article II section 2 paragraph 2:
[The President]... shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
Clearly, that passage says that the Senate gets input into Official appointments. But it does not say each one needs a separate confirmation vote.

Rather than having the president nominate a candidate, force that candidate to put their career and life on hold for years without pay, while Senate radicals try their best to humiliate him, and then probably never get an actual confirmation vote any way, here's what we can do to promote a more merit-based system. All nominees will be exempt from the confirmation process, so long as they satisfy the Senate's rules-based criteria. Using it's "Advice" power, the Senate can simply promulgate a rule mandating educational requirements, experience requirements, age restrictions, and other objective, non-partisan meritorious requirements for each federal Office. The President may then choose to appoint anyone who fits the requirements for a particular Office, and confirmation is automatic, without a Senate vote.

What's great about this system is that the Senate can do this unilaterally, and by a majority vote not subject to the filibuster. That's because the constitution gives the Senate the exclusive power to promulgate its own rules, including rules for "Advice and Consent." And by tradition, the Senate only requires a majority vote, not subject to a filibuster, to change the Senate rules. Neither the House nor the President are necessary to implement this reform.