Chuck Hagel was confirmed this week by the U.S. Senate to be our next secretary of defense.
For the last month and a half, a group of Republicans and others in Washington, D.C., mounted an unprecedented effort to ensure that sentence would never be written. They ultimately failed, but they sure gave it the old college try.
The final tally for Hagel’s confirmation in the Senate was 58-41. It was the closest vote for any Cabinet nominee since George W. Bush’s third attorney general, Michael Mukasey, was confirmed by a score of 53-40 in 2007.
The reasons for the Hagel holdup ranged from the legitimate (his views about Iran) to the ridiculous (a “connection” to a pro-Hamas group that, it turned out, does not actually exist).
At all points, the question that underlay the proceedings more than any other concerned the nature of Senate confirmations themselves. Namely, in grilling the unholy heck out of the former Republican senator, did the Senate abuse its authority to review a president’s Cabinet nominee before giving its ultimate approval?
There is a school of thought—and a large one at that—that would answer rather thunderously in the affirmative. For the past several decades in politics, the prevailing view has been that once someone is elected president, he is entitled to appoint pretty much anyone he wants to key high-ranking jobs in the executive branch, and that the Senate’s role in “confirming” such appointees is a mere formality.
The U.S. Constitution is of limited help on this point. The relevant clause is Article II, Section 2, paragraph 2, which stipulates that 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.”
The contention relates to “Advice and Consent,” which is one of those phrases that can mean whatever you want it to mean.
Depending on one’s reading, the clause could empower U.S. Senators to assume a boldly assertive role in determining an appointee’s aptitude for a particular job. However, it could just as plausibly be a mere acknowledgment of the president’s appointment power, with the mention of Congress nothing more than a nod to the “checks and balances” principle in the separation of powers.
Indeed, it was in a spirit of compromise that “Advice and Consent” was plugged into the Constitution in the first place—a means of placating both sides in the great argument at America’s founding over the relative powers of the executive and legislative branches.
As with other controversial Constitutional assertions—the Second Amendment leaps to mind—we might allot ourselves the right to reevaluate the clause based on more than two centuries of putting it into practice.
We can safely conclude, for instance, that one purpose for congressional crosschecks on Cabinet nominees is to prevent the appointment of folks who are plainly incompetent—the stooges and political hacks the president might try to sneak in as part of some quid pro quo.
To be sure, the Hagel case is a trifle more complex than that. It should surprise no one that the loudest objections were ideological rather than practical—a dynamic reminiscent of recent hearings for prospective Supreme Court justices.
Just as members of the Judiciary Committee devote much of their probing to how a judge might rule on a rematch of Roe v. Wade, questions to Hagel by the Arms Services Committee, instead of assessing his overall experience in government, focused on what he allegedly thinks about Israel, Iran and possible cuts to the defense budget.
Are these not valid concerns? If they are, are members of the legislature—the branch responsible for declaring war—not entitled to sufficient responses to them? And if so, are they then entitled to vote “nay” should such responses fail to alleviate such concerns?
The lament is that confirmation hearings have become overwhelmingly partisan affairs. More and more, Senators will vote against any nominee of a president of the opposing party, almost as a reflex. Call it confirmation bias.
The solution, then, is not for the Senate to become less involved in rendering judgment on presidential nominees for high office, but simply to become more principled in the manner thereof.
With great power comes great responsibility. So long as our Senate is cursed with one, it might as well exercise the other.