The Constitution gives the President of the United States the power to appoint individuals to fill executive and judicial branch vacancies. The Senate is charged with providing advice and consent for most of these appointments. Historically, that duty has been discharged through a confirmation vote within a reasonable period following a nomination. 

Unfortunately, over the course of several recent administrations, a growing number of the president’s nominees either never receive a confirmation vote or have to endure a significant wait for a vote. The Senate’s failure to act has created judicial emergencies and left vacant key positions on the president’s executive branch team. 

Hopefully, this rule change will motivate the Senate to treat nominees fairly by providing confirmation votes within a reasonable period of time.

- Alberto Gonzales

Last week, a majority of Senate Democrats voted in favor of the “nuclear option” to allow up-or-down votes on presidential nominees on a simple majority vote instead of the 60 votes required under the old Senate rules. Senate Democrats and the president insist this action was necessitated by the obstructionist tactics of Senate Republicans. 

As someone who witnessed firsthand the partisan obstruction by Democrats of President George W. Bush’s nominees, this claim is just the latest example of Washington hypocrisy. Republicans, not surprisingly, have expressed outrage over the rule change. However, many fully expect Senate Republicans to set aside their indignation and take advantage of the rule change as soon as they control the Senate and have the opportunity to work with a Republican President. 

The Senate, of course, can govern itself in any manner it sees fit — provided Senators discharge their obligations. The president’s job is to nominate good, qualified individuals to serve in his administration and in the judiciary. A great deal of care and energy is spent on every nomination. Once the president does his job, then it is the Senate’s turn to provide a hearing to evaluate the nominee and an up-or-down vote within a reasonable period. Elections have consequences and a president is entitled to have his team within the executive branch to help carry out his agenda, provided nominees are qualified by virtue of education and experience, and not disqualified because of background issues. 

Judicial nominees present different considerations. Judges are not appointed to represent or defend the president, nor to help carry out his agenda or vision for America. Federal judges are appointed to dispense justice under the law without bias. Furthermore, unlike executive branch appointments, a federal judicial appointment is for a life term. The decisions of judicial appointees extend well beyond the term of the president who appointed them, and can have serious long term consequences for litigants, society and the rule of law.

Perhaps this is why the new rule leaves in place the established procedure as to Supreme Court appointments. The Supreme Court, however, hears relatively few cases every year. Consequently, much of our jurisprudence is shaped by the decisions of the courts of appeals. This is not to suggest the rule change is wrong and that the Senate should continue its same old dysfunctional ways with respect to judicial nominees. Quite the contrary, the current political gridlock has delayed justice, adversely affected the jurisprudence of this country and discouraged good people from serving in the judiciary. On the other hand, the rule change may make it easier for ideologues in the Senate to influence the president to place ideologues on the bench, and thus weaken the integrity and competence of our judiciary.

Some commentators have warned that future Senate majorities may change the rules further to include Supreme Court nominees, and even legislation. This would fundamentally change the way the Senate has operated as an institution. Whether such changes would be good for the Senate and for the country in the long run is unknown. What is clear is that the old way of doing business was not working. Hopefully, this rule change will motivate the Senate to treat nominees fairly by providing confirmation votes within a reasonable period of time.

Alberto R. Gonzales is the former U.S. Attorney General and White House Counsel in the George W. Bush Administration. Presently he is the Dean and Doyle Rogers Distinguished Professor of Law at Belmont University College of Law.  

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