Reforming the New Confirmation Process: Replacing 'Despise and Resent' with 'Advice and Consent'

Abstract

My essay analyzes recent confirmation controversies involving Bill Lann Lee, James Hormel, and Richard Holbrooke, among others. I argue that these controversies have highlighted Senate customs, like the "hold," that give senators a de facto veto power over presidential nominees. These customs developed under old Senate norms that had built-in safeguards against abuses; but, I argue, a "new Senate style" has emerged with which these old customs are a poor fit. My contention is that the Senate should undertake reforms to rein in obstructionist senators before the executive branch, which has already begun to circumvent the Senate through the use of open-ended "acting" appointments and recess appointments, bypasses it altogether.

In addition to describing the replacement of the old Senate norms with new ones, and detailing the effect those new norms have had on Senate behavior in the confirmation process, I suggest several reforms that the Senate could undertake to prevent the irresponsible use of Senate power from further eroding its important responsibility to offer "advice and consent" to presidential nominations. These reforms range from making needed changes to the Senate's rules to creating an informal process for providing "advice" to presidents during the nomination process.

Keywords: Confirmation, Senate, President, appointments, Appointments Clause, Article II, Constitution, Separation of Powers, Advice and Consent

JEL Classification: K100