- - Tuesday, November 5, 2013

Senate Majority Leader Harry Reid is reportedly more than a little annoyed that his planned efforts to push several nominations through the Senate have been undermined by Sen. Lindsey Graham’s decision to delay consideration of all nominations until the president allows witnesses to the Benghazi attack to testify on Capitol Hill. Mr. Reid’s complaints would carry more force if he would police the abuse of the use of “holds” by his own party. This is far more than just a matter of injustice and abuse of power; it involves a threat to the Constitution itself.

Particularly egregious is the “permanent” hold Sen. Claire McCaskill of Missouri has placed on the nomination of one of the most impressive three-star generals in our nation’s history, Susan Helms, to become the next vice commander of Air Force Space Command. Gen. Helms, for those who don’t recognize the name, was the first female military astronaut to orbit Earth and still holds the record for the longest spacewalk in history.

The Uniform Code of Military Justice charges military commanders with the responsibility to review the records of court-martial convictions and to take corrective action when the interests of justice so require. Pursuant to that statutory duty, in her capacity as commander of 14th Air Force, Gen. Helms overturned a February 2012 sexual-assault conviction of a male Air Force captain at Vandenberg Air Force Base in California. Any suspicion that Gen. Helms is some sort of misogynistic Neanderthal, insensitive to the rights of (other) women, should have been put to rest when she proceeded to use nonjudicial punishment under Article 15 of the uniform code to terminate the captain’s military career.

But Mrs. McCaskill declared: “Lt. Gen. Helms sent a damaging message to survivors of sexual assault who are seeking justice in the military justice system.” To negate this message, she announced in June that she has placed a “permanent hold” on the Helms nomination.

Why did Gen. Helms set aside the conviction? She explains her decision in a compelling memorandum, which can be read on the Air Force Freedom of Information Act Electronic Reading Room. The female lieutenant who served as “designated driver” for the group, and consumed no alcohol on the evening in question, contradicted the accuser’s testimony on several material points, and testified she neither heard nor witnessed any sexual activity in the back seat that appeared nonconsensual. The accuser waited nearly a year to bring her complaint, and gave testimony under oath that was inconsistent with that of other witnesses, including that she has subsequently exchanged text messages with the captain only a “couple times,” when the record clearly established she had initiated more than 50 of the 100-plus messages the two exchanged. Concluding that the prosecutor had failed to establish guilt “beyond reasonable doubt,” Gen. Helms quite properly did her duty as required by law.

Mrs. McCaskill deserves credit for expressing her concerns about the epidemic of sexual abuse in the military. However, placing a hold on Gen. Helms‘ nomination is wrongheaded. If the senator no longer thinks that military commanders should have the obligation to review convictions, she can vote to amend the Uniform Code of Military Justice. If she is concerned about sending bad “messages,” she might want to consider the undue political influence she has now injected into the military justice system. Is she not telling military jurors (and even federal judges) who may be called upon to pass judgment in sexual-abuse cases that “justice” is no longer the goal, and “if you aspire to someday be confirmed to a higher position by the Senate, you had better side with the accuser — because this one single senator can, and will, destroy your career.”

Not only is the senator’s hold a terrible injustice to a truly extraordinary military officer, it is also an abuse of the Constitution itself. Article II, Section 2 of the Constitution grants to the president the power to “nominate” and, with the “advice and consent of the Senate,” to “appoint officers of the United States.” A majority of a quorum being necessary to confirm, the Senate’s power to block appointments is thus vested in half of that quorum — not in a single senator.

Writing in The Federalist No. 76, Alexander Hamilton explained that the involvement of the Senate in executive nominations was designed to prevent the appointment of “unfit characters” based upon “family connection,” personal friendships and the like. None of these factors are present here.

Article I, Section 5 of the Constitution empowers each house of Congress to “determine the rules of its proceedings.” Implicit in that language is the requirement that those rules be consistent with the Constitution itself. It is perfectly reasonable for the Senate to permit one or more members to seek a delay in consideration of a nomination while the chamber continues a good-faith investigation of that nominee’s fitness. However, the president ultimately deserves an up-or-down vote. To allow a single senator to place a “permanent” hold on nominees so that presidential appointments cannot be made without the unanimous consent of the Senate, is a flagrant breach of the Constitution. Mr. Reid should recognize this and act to bring the rules and practices of the Senate in line with the Constitution.

Robert F. Turner co-founded the Center for National Security Law at the University of Virginia School of Law in 1981 and is a former acting assistant secretary of state for legislative affairs. The views expressed are his own.