"Advice and Consent"

In his famous treatment in The Federalist 76, of the Senate's role of "Advice and Consent" to presidential appointments, Alexander Hamilton observed that those who will have reflected upon the subject, "in relation to the appointment of the President, will, I presume, agree to the position, that there would always be great probability of having the place supplied by a man of abilities, at least respectable. ... The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them."

Well, so much for that naive assumption!

In defending the requirement for senatorial confirmation of presidential nominations, Hamilton, who fully expected most such appointments to be confirmed, nonetheless recognized the value of a check upon presidential power. "It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration. ... Though it might therefore be allowable to suppose that the Executive might occasionally influence some individuals in the Senate, yet the supposition, that he could in general purchase the integrity of the whole body, would be forced and improbable."

In the more than two centuries which have elapsed since Hamilton and his colleagues persuaded their fellow citizens of the wisdom of our constitutional arrangements, the Senate's "Advice and Consent" function has become one of that body's most highly prized prerogatives and responsibilities.

At least until now!

Confronted with certain cabinet nominations that can be characterized as unqualified and dangerous, the Senate that will convene in January will be tested as seldom in American history. Four Republican Senators would have to vote against a nomination for it to fail to receive the requisite confirmation. In an earlier era, that might be easily imagined. And it might yet happen, but it is easier to imagine the opposite - a Senate majority so compliant to the demands of its party's leader that this precious prerogative may be irresponsibly surrendered.

To obviate even this relatively remote possibility, the Administration has raised the possibility of recess appointments. If the Senate voluntarily adjourns to facilitate that - or if it confirms the nominees the normal way to avoid the humiliation of colluding in recess appointments - either way, yet another valued constitutional check will be abandoned, another bad precedent set, and the Senate's minimal moral legitimacy further eroded.

Recess Appointments, it should be noted, are a constitutional archaism - appropriate and necessary when Congress met for only a few months during the year and could not be quickly reassembled for this purpose. Now that Congress is in session all year long and can reassemble as quickly as jet planes can transport members, there is no longer any good reason for recess appointments, except as a way of getting around senatorial prerogatives. (That may indeed be desirable in some instances, but hard cases make bad law and can set bad precedents.)

That said, there remains the danger, if the Senate were to stand up to the White House and refuse either to confirm or adjourn, that the House might collude with the Administration by adjourning itself, in which case the President could invoke an obscure - and dangerous - constitutional authorization to adjourn Congress himself "to such time as he shall think proper." That would not only give him his recess appointments, but it would also thoroughly demean Congress as a mere accessory within the MAGA cult.