This week has not been the US Senate’s finest moment. And we’re not talking about the chamber’s much-debated new dress code, which allows members (though not their staff) to wear casual clothes.
Instead, two events cast an unflattering spotlight on the rules that give individual senators too much power over government appointments, far exceeding the authority that the Constitution envisioned and creating open invitations for misuse.
The way the system for appointing senior officials should work — and the way you might be forgiven for assuming it does if you took civics class at face value — is that the president makes nominations, and then senators vote to accept or reject them.
But the Senate — by tradition, not because the Constitution says so — lets individual senators hold up nominations for any reason, or for no reason. That odd practice has been on display all summer, as Senator Tommy Tuberville, Republican of Alabama, held up nominations for senior military ranks. His fellow senators finally circumvented his blockade this week to approve the promotion of three generals. But hundreds more military promotions remain in limbo; Tuberville said he won’t release his hold until the military ends an unrelated policy on abortions for service members.
In a far more serious development, Senator Robert Menendez, a New Jersey Democrat, was charged Friday with taking hundreds of thousands of dollars in bribes and other misdeeds. One of the most alarming allegations in the indictment is that Menendez recommended that President Biden nominate as the US attorney in New Jersey a lawyer Menendez believed he could influence to disrupt a prosecution of one of the senator’s fund-raisers.
Now, why, you might ask, would the senator — any senator — be making recommendations to the president about their own state’s US attorney? Isn’t that an inherent conflict of interest, since the US attorney is one of the officials most likely to investigate any potential wrongdoing by the senator? Shouldn’t a main criteria for any US attorney be scrupulous independence from the jurisdiction’s political figures?
But the Senate’s practice has been exactly the opposite. Senators are informally allowed to pick the US attorney in their state. Again, the Constitution makes no mention of any such authority for home-state senators; it calls on the Senate as a body to give “advice and consent” to appointments.
Delegating that collective responsibility to individual senators gives them too much power. And while prosecutors still have to prove their case against Menendez, it’s all too easy to imagine how a senator could abuse the customs that have given them so much sway over individual appointments.
So what to do? There are ways to circumvent holds; Senate majority leader Chuck Schumer used one this week to get the three generals confirmed. And over the past few decades, some other quirky senatorial prerogatives have started to fade. That’s because, when they’re under a public spotlight, so few of those traditions are justifiable. The so-called nuclear option, for instance, ended the ability of a minority of senators to filibuster judicial nominees.
The defense of the filibuster and other senatorial perks is that they encourage consensus. In the case of local nominees, senators may protest that they know their home state best.
Nobody would dispute senators know their home states. But it doesn’t follow from that fact that senators should have powers the Constitution doesn’t grant them as individuals. There’s no good reason individual senators should be allowed to hold up military promotions or to pick US attorneys, and lots of ways both practices could lead to trouble. Hopefully, it won’t take one of their colleagues wearing stripes to convince senators that, like dress codes, some traditions have to change with the times.
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