Alexander: Fewer Presidential Nominations Needing Confirmation “Will Help Senate Do a Better Job of its Constitutional Duty”

Legislation “Helps Avoid Trivializing” the Nominations Process; Helps End “Innocent Until Nominated” Phenomenon

Posted on June 29, 2011

“This is legislation to make oversight more effective. If we were to propose using advice and consent for every Senate staff member, for every agricultural extension service member, and every forest ranger, that would be less oversight, because we wouldn't have time to do anything else. That, in effect, is what we are doing now with advice and consent by the bucket-load of officer corps members and of part-time advisory commission members whom the President can vet and appoint, and all of whom report to somebody over whom we do have advise-and-consent control.”  – Lamar Alexander  

WASHINGTON – U.S. Senator Lamar Alexander (R-Tenn.) said today that Senate passage of legislation eliminating Senate confirmation on 169 executive nominations and almost 3,000 noncontroversial Officer Corps positions – such as members of the Public Health Service Officer Corps and the National Oceanic Atmospheric Administration Officer Corps – will “help avoid the trivialization of the Senate’s constitutional duty of advice and consent by fulfilling another constitutional responsibility: deciding which presidential appointments should not require Senate confirmation.

“Today, with 1,400 presidential appointments requiring the Senate’s advice and consent, we do not spend the time we should reviewing the qualifications of the most important government officers that the President needs to appoint. In fact, last Congress, only 3 percent of the positions that require Senate confirmation received a roll call vote. The other 97 percent passed by unanimous consent.”

A separate Senate resolution would establish a streamlined confirmation process for an additional 280 part-time positions. In all, the bill and resolution reduce the number of positions requiring full Senate confirmation or expedite that process for one-third of all executive nominations.

Alexander also said of the bill: “It is about ending the phenomenon of ‘innocent until nominated,’ which is what happens to distinguished citizens of this country who are asked to serve in the federal government and, to their great horror, discover they are heading through a maze of conflicting forms and questionnaires, until finally they are dragged before a tribunal in the Senate and caught in an inadvertent error and made out to be a criminal, when they thought they were an upstanding citizen, having served in their hometowns for a long time.”

In a floor speech last week, Alexander noted that the Constitution says the President “shall nominate, by and with the Advice and Consent of the Senate,’” and that Congress “may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.’” Senator Alexander further explained that the constitutional meaning of “inferior officers” was articulated by Justice Antonin Scalia, writing for the Supreme Court in the 1997 case of Edmund v. United States. There, the Court held that “inferior officers” are those “officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.”

This legislation represents part of the bipartisan agreement reached earlier this year by Senate Majority Leader Harry Reid, of Nevada, and Republican Leader Mitch McConnell, of Kentucky, to reform the rules of the Senate when efforts were threatened to change the filibuster and limit the ability of the Senate Minority to exercise its rights to unlimited debate and the offering of amendments.

Alexander, who is Ranking Member of the Senate Committee on Rules and Administration, introduced the bill with the committee’s Chairman, Senator Charles E. Schumer (D-N.Y.); Joe Lieberman (I-Conn.); and Susan Collins (R-Maine). It is co-sponsored by Majority Leader Harry Reid and Republican Leader Mitch McConnell. 

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