The Advice and Consent Power Was a Mistake

Yesterday, Dave Weigel asked “[w]hat’s the case for 60-vote thresholds on non-lifetime appointments, anyway? If they suck, win the next election.” This is right, but I would actually go farther than that — I don’t think the advice and consent power over executive branch appointments makes any sense at all. I take Jacob Levy’s point that it wasn’t necessarily a terrible idea at the time of the founding. (The comparison could compared to the decision to give judges life tenure rather than fixed, non-renewable terms; a mistake, in my view, but an understandable one in a context where jobs as federal judges were so low prestige and undesirable it was hard to convince people to take them. We can be pretty safe in assuming that John Roberts isn’t going to resign to fun for governor of Virginia.)

At any rate,the president should be able to stock the executive branch with like-minded individuals, and the government should be able to function properly. The advice and consent power, alas, allows the Senate to frustrate both objectives. If we were drawing a constitution from scratch, or Article V didn’t make it nearly impossible to amend, it seems obvious that the check on the executive branch power should be a removal power (perhaps with a supermajority) rather than an approval power. This would place the presumption of authority on the president where it belongs, and most importantly would prevent the Senate from ongoing obstruction or serial rejections that aren’t designed to reject individual unqualified nominees but are designed to nullify proper powers of the executive branch.

Nominations to the judiciary are a more complicated problem; lifetime appointments to an independent branch aren’t necessarily entitled to the same level of deference, although our ideal new constitution would be well-advised to have come up with some kind of mechanism to prevent serial rejections. But allowing the Senate a veto over executive branch appointments was a really bad idea. Since we’re stuck with advice and consent even for executive branch powers, we should start with noting that the idea of a supermajority requirement for executive branch appointments is absurd, and Reid is clever to start a war on the filibuster with this plainly indefensible practice. And wherever possible the federal courts should realize that these are Article II powers we’re talking about and resolve ambiguities and conflicts in favor of the functioning government and the executive branch, not against them as is the current Republican practice.