In the current issue of The National Interest, James Kitfield predicts that deadlock between the congressional and executive branches of government will continue, with deleterious consequences for U.S. foreign policy. “The congressional opposition will keep stubbornly obstructing the president's foreign-policy initiatives out of a sense of duty and ideology, and the perceived erosion in the quality of U.S. global leadership will persist,” he notes.
This has manifested itself, especially in the last several presidential administrations, in the delays and problems in getting executive-branch nominees—including subcabinet posts and ambassadorships—confirmed in a timely manner. Take Carlos Pascual, nominated in February to be assistant secretary of state for energy resources, a new bureau created to focus on an area that increasingly is driving possible conflicts all over the world, from the disputed offshore zones off of Cyprus to the South China Sea. The Senate adjourned earlier this month for its August-September recess without acting on Pascual’s nomination. The Senate also chose not to move forward with the nomination of a new ambassador to Pakistan, arguably one of America’s most critical bilateral relationships.
As a result of such delays, key positions can remain unfilled for months—or might be held by holdovers or temporary appointees who are more inclined to simply “mind the store” rather than break new ground. The difficulties of the confirmation process also can cause qualified people to decide that it is not worth it to have their names put in nomination in the first place—given the trials and tribulations of dealing with what often can seem like the capricious whims of individual senators.
The Constitution only requires the “advice and consent” of the Senate; it does not specify any details as to how this comes about. George Washington deliberately interpreted the relevant constitutional clause to mean that the Senate would offer its opinion only after the president had made a nomination; he recognized no automatic presumption that the Senate should be able to present a list of potential candidates. Andrew Johnson’s impeachment trial settled once and for all the point that executive-branch appointees work at the pleasure of the president—and the chief executive does not need Congressional permission to fire or replace those who work for him.
Over the years, a number of senatorial traditions have emerged that guide the confirmation process. In recent years, one of the most notorious has been that of the anonymous hold—the ability of one member of the Senate to prevent action on a nominee from moving forward. The ability of a senator to stop cold the confirmation process also has been used as a way to gain political leverage vis-à-vis the executive branch. But none of this is constitutionally sanctioned.
At the same time, another senatorial tradition has strongly eroded, particularly in the hyperpartisan atmosphere of recent years. Former Oklahoma senator David Boren noted that, in the past, most members of the Senate started from the presumption that “the President should have the ability to select those people that he wants to work with him hand in glove.” This is not always the case now. And when a president cannot get his nominees through the process in a speedy fashion, the business of the country suffers.