Advice and consent

At the end of each year, the Chief Justice of the Supreme Court issues a report, a year-end report on the Federal judiciary. This year, the Chief Justice turned his report into an opportunity to answer back at what is the central limitation on the judiciary: the Federal nomination and confirmation process established in the Constitution.¹Ross, Lee. (2010, December 31. “Chief Justice Roberts Blasts Lawmakers On Judicial Nominations“. FoxNews.com.

We saw this all throughout the term of President George W. Bush. The Democrat majority in the Senate used their majority power to block confirmations on Presidential nominations, most notably those of the Federal judiciary including the Supreme Court, as a means of accomplishing goals completely unrelated to the nominations themselves. Instead the Democrats seemed to turn the confirmation process into a bargaining chip.

Had the Republicans won a majority in the Senate in this last election, we could expect the same would have occurred with regard to Obama’s nominations.

Under the Constitution of the United States, the Senate has the sole authority to provide “advice and consent” to any and all nominations by the President of the United States.²Article II, Section 2 Exercising this power, the Senate interviews and grills all nominees to determine their suitability to the role in question. The Senate is not to merely “rubber stamp” confirmations, but we all know this happens regardless, unless an opportunity arises in which the Senate can use this power to get something from the President: “okay we’ll confirm this nomination as long as you agree to this…”

The question comes down to why the advice and consent power is vested only in the Senate. The answer comes down to the true role of the Senate that was lost when the Seventeenth Amendment was passed.

In an earlier article, I wrote of the true role of the Federal government, and that its proper place is subordinate to the States and the People.³“Citizen Congress“. Posted July 30, 2010. This is clear in how the members of the government were originally selected. The House of Representatives was the only part of the government directly elected by the People. The Senate and President (by way of Electors) were chosen by the State legislatures.⁴Article I, Section 3: “The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof“

This important balance, eliminated by the Seventeenth Amendment⁵“The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years”, kept the Federal government inferior to the States. And because the State governments were deemed inferior to the People by way of the ballot, the Federal government was kept very well in check. The Federal government’s authority was in check by the States through the Senate and by the People through the States and the House of Representatives.

Vesting the power of advice and consent to the Senate was the ultimate means of keeping the Federal government inferior to the States. This means the States selected not only the President, by way of Electors who may be chosen absent a popular vote⁶Article II, Section 1 of the Constitution: “Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress” and have been previously, but also the President’s officers, including the Cabinet and the judiciary. The People had the say in what the Federal government would do by way of the House of Representatives, and the States had say in who would do it through the Senate.

Today the Federal government is making itself superior to the People, placing the States on the bottom and at the mercy of the Federal government.

The Senate, now directly elected by the people instead of appointed by the States, is arguably now even more politically afire than the House of Representatives ever has been. Vested in the Senate is a lot of authority in so few people, which is why its original selection was to be removed entirely from politically-charged elections. Senators were to be the representatives of the States equally in the Federal government.

The Founders knew that vesting so much authority in so few people, relatively unchecked, would result in oligarchy. We are today seeing this to be the case. The question to be answered is whether we have caught things too late.

I do not like denigrating the People, but ignorance is difficult to ignore and the People of the United States are not only ignorant, but cowardly and paranoid. It was against this the structure of the Federal government was designed to protect. By having only one half of one branch of government popularly elected on as frequent a basis as every two years, with each Representative checked by the other Representatives of not only the same State, but the entire United States, the possibility of the ignorance, cowardice and paranoia of a relative few number of people overly influencing the Federal government is significantly reduced than if, say, two people were popularly elected to represent the largest States by population (i.e. California and Texas).

Now this isn’t to say the Founders were not paranoid. They certainly were, which is why they designed a process for selecting the President of the United States, along with much of the rest of the Federal government, that is insulated from the People. The Founders lack of faith in the People when it comes to their government is difficult to ignore, hence many procedural safeguards along with the specific enumeration of powers. While the Founders did have a lot of faith in the People, for without that faith, independence from the Crown of Great Britain would not have been attained, when it came to enacting a national government to unite the States, they kept said national government focused purely on the role of the States within that government and kept as much of it as possible insulated from the People.

The people were not supposed to have a direct role in the Federal government.

The reason for this is because the People are more able to influence the governments that are closer to them: those of the city, county, and State in which they reside. When the people are not able to check a government they choose directly, the chance of that government becoming corrupt increases significantly.

Oddly enough the Electoral College was the one part of the Constitution least contested, as noted by Alexander Hamilton in Federalist No. 68⁷Federalist No. 68: “The mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents.”, yet today it is the one part of the Constitution that seems the most desirable to change, especially in the wake of President Bush’s election in 2000 wherein he won the requisite number of electoral votes (albeit with the intervention of the United States Supreme Court⁸Bush v. Gore, 531 US 98 (2000)) but did not win a majority of the popular vote.

The States were the best safeguard for keeping the Federal government in check. The People do not have nearly as much ability, especially given how easily we can be reduced into pesky, pestilent, squandering, argumentative and belligerent mobs, often at the mention of only a few words. In other words the People tend to act in a democratic fashion, as history has shown, and that is the fastest way to erode a republic.

The Founders knew this. This is why prior to the Seventeenth Amendment the more powerful chamber of Congress was left to the selection and safeguard of the State governments. This is why the power of advice and consent was left solely with the Senate and not with the House of Representatives. The Federal government was intended to be insulated from the People for reasons we have been witnessing since about the time of the Civil War.

In short the power of the Federal government was meant to be wielded by those appointed and confirmed by representatives of the States, not by those directly elected by the People. This was intended as the principal safeguard of that power from corruption, and those safeguards have been all but eliminated. This is why the Electoral College is under attack: it is the only safeguard left before the government becomes entirely popularly elected, with the exception of the judiciary, and subject to the kind of corruption known to democracies.