Executive nominees shouldn't be filibustered - Presidential Picks Deserve a Vote

Presidential Picks Deserve a Vote. By Walter Dellinger
Executive nominees shouldn't be filibustered.
WSJ, Apr 20, 2009

On the eve of George W. Bush's inauguration in 2001, I cautioned fellow Democrats against "delaying or denying confirmation of nominees to cabinet and subcabinet posts." I argued on these pages that blocking executive nominees would weaken the presidency and be counterproductive for the opposition: "If a president cannot promptly place his chosen people in key offices, he can hardly be held fully responsible for the missteps of the administration."

In the past few years, many Republican senators have agreed, saying that it is unacceptable to filibuster a nominee submitted to the Senate for its "advice and consent." Some Republicans have gone further than I would, asserting that filibusters of presidential nominations are unconstitutional.

I was therefore taken aback by recent speculation that Republicans might filibuster two of President Barack Obama's key nominees: Dawn Johnsen, to head the Justice Department's Office of Legal Counsel; and Harold Koh, to be legal adviser to the State Department.

In the past, Republican senators have publicly asserted that it is either "unacceptable" or "unconstitutional" to filibuster an up-or-down vote of a nominee submitted by the president for Senate "advice and consent." I cannot believe they would now abandon that principle.

Just last year, Sen. John Cornyn (Texas) made this point clearly: "Far too many judicial and executive nominees have been delayed. . . . Senators have a right to vote for or against any nominee -- but blocking votes on nominations is unacceptable." Other senatorial statements also are starkly unequivocal. Lamar Alexander (Tennessee) said, "I pledged, then and there, I would never filibuster any president's judicial nominee, period. I might vote against them, but I will always see they came to a vote."

Although the Senate is free to filibuster legislation, a number of senators argued that the Constitution requires it to vote on nominations. Thus Orrin Hatch (Utah) said, "The advice and consent clause is clearly an up-or-down vote -- a majority vote -- on the floor of the Senate." Bob Bennett (Utah) added, "In my view, the Founding Fathers clearly intended the Senate to consent to the president's choices on a majority vote." Kay Bailey Hutchinson of Texas said that "advice and consent as it is called in the Constitution . . . has always meant a majority vote."

For a time it appeared that Republicans might enact a "nuclear option" -- sustaining on a majority vote a ruling that filibusters of presidential nominations are unconstitutional. (The "gang of 14" compromise in 2005, confirming some judges and not others, ended that threat.)

Many Democrats have in the past defended filibustering executive-branch nominees. Democrats filibustered Mr. Bush's nomination of John Bolton to the United Nations post, and blocked his nominations of Eugene Scalia and Otto Reich by delaying votes. Some judicial candidates, like Miguel Estrada, were also subject to actual or threatened filibusters. Judicial candidates, however, present different considerations. Unlike judges, executive-branch nominees work for the president, and he should have greater discretion in deciding who serves in his administration.

I have disagreed with filibusters of executive-branch nominees whether done by Democrats or Republicans. But Democrats have at least been consistent in maintaining, under presidents of both parties, that filibusters were permissible. Those who would now filibuster the nominations of Mr. Koh and Ms. Johnsen would engage in activity that they recently condemned in stark terms.

The list of senators who have virtually ruled out advice-and-consent filibusters also includes Mitch McConnell (Kentucky), Kit Bond (Missouri), Sam Brownback and Pat Roberts (Kansas), Tom Coburn and James Inhofe (Oklahoma), Mike Crapo (Idaho), Lindsey Graham (South Carolina), Chuck Grassley (Iowa), Judd Gregg (New Hampshire), Jon Kyl (Arizona), Jeff Sessions (Alabama), Arlen Specter (Pennsylvania) and George Voinovich (Ohio).

Whether Republicans or Democrats are in office, the loyal opposition should not frustrate a president's ability to execute the powers of his office by denying an up-or-down vote to executive-branch nominees.

Mr. Dellinger was head of the Office of Legal Counsel from 1993 to 1996.