The Advice and Consent of the Senate

Despite the recent “compromise” between the two major parties in the Senate on the subject of judicial confirmation, there are still major issues and obstacles concerning the confirmation process in this legislative body. It is clear to any observer that something is terribly wrong with the process. Further study reveals that the process has broken down for one overriding reason. It is because our public officials have so ignored and shredded the limitations and provisions of the Constitution that it no longer serves as a restraint on political power. In this writing we will show the concerns of the Founders and how they addressed these problems in the Constitution in order to provide for a more perfect union.

One of the issues, about which the Founders had differing opinions, was that of the process by which various offices of the federal government should be filled. Of course, the President, the Senators, and the Representatives in Congress would be filled by different elective processes, but what about the offices of judges, ambassadors, and offices in other departments of government? To elect all those would be very cumbersome and inefficient. The only other option would be to appoint. But that has disadvantages also.

Drawing upon all their experience and their knowledge of human nature, they came up with a simple formula which maintained the delicate balance of powers, and which would, they hoped, at the same time accomplish the task of orderly filling appointed offices with qualified individuals. This formula is contained in Article 2, Section 2, Clause 2 of the Constitution. Referring to the powers of the president, it reads:

“He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur; and he 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.”

The President Chooses and Nominates, the Senate Confirms or Rejects

Alexander Hamilton explained that the Senate has no choice about who will serve: "It will be the office of the President to nominate, and, with the advice and consent of the Senate, to appoint. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose -- they can only ratify or reject the choice of the President." (Federalist Papers No. 66)

This provision leaves with the President the power to choose his own co-workers in the executive branch as well as the judicial officers of the federal courts. So why did the Founders feel it was necessary to involve the Senate at all in this process? An interesting exchange of letters took place in July 1789, between John Adams, who was then serving as vice-president under Washington and Roger Sherman, the one who proposed the make-up of the Senate in the Constitutional Convention.

Adams, who was not at the Constitutional Convention, questioned Sherman as to the need to have the Senate confirm presidential appointments. He felt that the Senate would become too aristocratic and power hungry. Said he:

“It [the requirement for the Senate to confirm appointments] has a natural tendency to excite ambition in the Senate. An active, ardent spirit, who is rich and able, and has a great reputation and influence, will be solicited by candidates for office…. Will he not naturally be tempted to make use of his whole personage, his whole influence, in advising to appointments, both with president and senators, to get such persons nominated as will exert themselves in elections of president, vice-president, senators, and house of representatives, to increase his interest and promote his views?”

Then John Adams followed with this prophetic observation: “We shall very soon have parties formed; a court and country, and those parties will have names given them. One party in the house of representatives will support the president and his measures and ministers; the other will oppose them. A similar party will be in the senate; these parties will study with all their arts, perhaps with intrigue, perhaps with corruption, at every election to increase their own friends and diminish their opposers. Suppose such parties formed in the senate and then consider what factious divisions we shall have there upon every nomination.” (The Founders Constitution, Vol. 4, p. 107)

Roger Sherman had more faith in the Senate than did John Adams. As was noted, it was Sherman that had introduced the Great Compromise in the convention with a Senate composed of equal representation from the states and chosen, not by the people, but by the respective state legislatures. In his reply to John Adams he said:

“I see no principles in our constitution that have any tendency to aristocracy, which, if I understand the term, is a government by nobles, independent of the people, which cannot take place, in either respect, without a total subversion of the constitution….

“If the president alone was vested with the power of appointing all officers, and was left to select a council for himself, he would be liable to be deceived by flatterers and pretenders to patriotism, who would have no motive but their own emolument. They would wish to extend the powers of the executive to increase their own importance; and, however upright he might be in his intentions, there would be great danger of his being misled, even to the subversion of the constitution, or, at least to introduce such evils as to interrupt the harmony of the government, and deprive him of the confidence of the people.” (Ibid., p. 108)

George Mason, another delegate to the convention, was convinced that the Senate, as was originally constituted, would be the great protector from constitutional abuses. Said he:

“The Senate is not the immediate representatives of the people at large, nor elected by them. They are elected by the legislatures of the different states, and they represent respectively, the sovereignty of the separate states, in the general union. Upon no other principle can the equality of representation in the larger and smaller states be justified. The senate act in a diplomatic, as well as a legislative character; and it is in the former capacity that they give advice to the president; and partake of some executive powers. The Constitution therefore wisely and properly directs the ambassadors, [judges,] etc., shall not be appointed, but with the advise and approbation of the states, which form the Union, through their organ, or representative, the Senate. I wish this important subject to be fairly discussed, upon it’s merits, and decided upon, in the infancy of the new government and in the presidency of General Washington; who, I am sure, is strongly attached to the rights and liberty of our country; but we are not sure that this will be the case with his successors.” (Ibid., p.111)

One can see the great hope of George Mason and others of the Founders for the future of the United States Senate. It was really the states’ house. And because it had political power in the Constitution it would serve as the guardian and protector of the delicate balance of power between the states and the federal government. In its role, it would give advice and consent to the appointments of the president to make sure that all executive officials and all federal judges would also respect this delicate balance. This would make sure that the states were not forgotten and that the federal government did not infringe on the states’ powers and domain. What more protection can be thought of than by giving this body of representatives of the states the power to approve every law and the power to approve every federal judge and executive office holder? The system was pure genius.

It should also be noted that the requirement to confirm a nomination by the president was only by a majority of the senate and not by a larger number. Only in extraordinary cases was a supermajority required, such as in amending the constitution or in overriding a presidential veto, where a two-thirds vote is required. But confirming presidential appointments was “a power nearly as important as legislation” as Roger Sherman noted. So it should only require a majority vote.

Is the Filibuster a Constitutional Provision?

Using the filibuster to delay or block legislative action has a long history, but it has no basis in the Constitution. It has been used to procedurally circumvent the constitutional requirement that only a majority of senators is necessary to pass a bill or confirm a nomination.

The term filibuster -- from a Dutch word meaning "pirate" -- became popular in the 1850s, when it was applied to efforts to hold the Senate floor in order to prevent a vote on a bill. In the early years of Congress, representatives as well as senators could filibuster. As the House of Representatives grew in numbers, however, revisions to the House rules were made in order to limit debate. In the smaller Senate, unlimited debate continued on the grounds that any senator should have the right to speak as long as necessary on any issue. In 1917, senators adopted a rule, at the urging of President Woodrow Wilson, that allowed the Senate to end a debate with a two-thirds majority vote, a device known as "cloture." In 1975, the Senate reduced the number of votes required for cloture from two-thirds to three-fifths, or sixty of the current one hundred senators.

In actuality, using a filibuster has become a tool to effectively increase the number of votes necessary to pass a bill or confirm a nomination, to 60, since a vote cannot be taken until a successful cloture vote ends the filibuster. Today, this becomes critical because the number of senators for or against President Bush’s judicial nominations are nearly equally divided and it appears not too probable that 60 senators will agree with many of these more conservative nominations.

Once again, techniques are being used in government to completely ignore constitutional provisions in order to further the agenda of those who seem to care less about principled government. If the original Founders’ formula were in place and being honored, this stalemate of judicial nominations would not be happening.

Of course, in a larger sense, if the original constitutional designs were being followed, our government would not be mired in a number of situations. For example, judicial nominations are being scrutinized on issues which the federal courts have no constitutional authority to adjudicate in the first place. As we have noted before, article III of the Constitution clearly outlines the eleven types of cases which are assigned to the federal courts. They are to deal only with cases involving:

  1. the Constitution
  2. the laws of the United States (constitutional laws, of course)
  3. and treaties made, or which shall be made under their authority;
  4. to all cases affecting ambassadors, other public ministers and consuls;
  5. to all cases of admiralty and maritime jurisdiction;
  6. to controversies to which the United States shall be a party;
  7. to controversies between two or more States;
  8. between a State and citizens of another State (repealed);
  9. between citizens of different States;
  10. between citizens of the same State claiming lands under grants of different States;
  11. and between a State, or the citizens thereof and a foreign States' citizens or subjects.

Citizens must constantly ask federal officials: Where do federal judges get authority to handle cases dealing with abortion, murder, schools, marriage, and many other local and state issues? The answer must continually be: There is no authority. If the Founders’ constitutional limitations were in force today, there would not be enough authority in federal judgeships to tempt special interest groups to try to influence who gets appointed to the bench.

Of course this shows once again the real answer to America’s problems today is to restore the Constitution in its original brilliance. It would solve more problems than all the parliamentary haggling and “reforming” that could ever be done. It would also restore the Senate to its original role as protector of the states and the preserver of the established order of things, instead of being composed of individuals who further their own political agenda.


Earl Taylor, Jr.

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