- The Washington Times - Tuesday, January 16, 2001

Senatorial confirmation of presidential appointments is a unique American practice virtually unknown in any other major democratic society.

The idea is anchored in the doctrine of the separation of powers, which is again uniquely American. Senatorial confirmation is a most significant legislative function. The intention of the Founding Fathers and Framers of the Constitution was subject to frequent debate at the Constitutional Convention of 1787 as to what kinds of checks and balances should be applied to executive power. The real purpose was to safeguard the constitutional system from what the Founders called monarchical abuse. However, 200-plus years of constitutional and political experience has considerably amended and enlarged senatorial power of advice and consent. The most significant study of advice and consent of the Senate up to now is Joseph P. Harris' "The Advice and Consent of the Senate," 1953.

Safeguarding against arbitrary executive power is no longer the primary purpose of senatorial confirmation. From the presidency of John Adams to that of George W. Bush, senatorial confirmation has become the political and ideological instrument par excellence in the hands of the Senate. In the last 20 years the Senate has used senatorial confirmation to set up alternative agendas to that of the president for upcoming elections, while the president's position is that his official family (the Cabinet) will represent the principals of his philosophy and campaign strategy. The political tug of war is no longer as it was an effort by liberals and conservatives to reject candidates ideologically unsuitable to their purposes. Now it is a battle royal over the future of the political parties themselves.

Advice and consent began as a rather passive political act and responsibility of the Senate. Now it is the instrument of the minority to battle, bruise and insult the majority in the name of the doctrine of the separation of powers. What never existed in American history before certainly not in the days of the Framers or in the 19th century is the emergence of powerful, determined, well-organized minorities with clear agendas that use their power and influence to pressure wavering and "accommodating" senators.

Look at what has happened in the past week. Political propaganda, organized by a coalition of liberal causes to "persuade" wavering or non-committed senators, succeeded in turning the debate away from the polite senatorial attitude toward attorney general designate John Ashcroft. A week ago there were few Democratic senators that went beyond the statement, "We will wait for the hearing to make up our minds." Now, there are 30 Democratic senators who have stated their intention to vote against Mr. Ashcroft before the hearing has begun.

Political ideology, partisanship and policy orientations are well institutionalized into the advice and consent system. Liberal senators oppose conservative candidates, and conservative senators oppose liberal candidates. According to Professor Harris, with the nomination of Harlan F. Stone to the Supreme Court in 1925, the Senate liberals made concerted efforts to block the nomination for ideological reasons. Stone was President Coolidge's attorney general, dean of Columbia Law School, a most highly respected legal scholar and a judicial philosopher. He had impeccable credentials for the office. Nevertheless, a group of Progressive Party senators in the Democratic Party, led by Sens. William Borah and David Walsh, vehemently opposed him. In the end, the Senate confirmed Justice Stone by an overwhelming majority that argued that the opposition was misplaced.

The opposition by Senate conservatives to the appointment of liberals was a continuous and sustained effort throughout the tenure of President Franklin Delano Roosevelt. The opposition was clearly ideological. The conservatives hated the New Deal. Roosevelt's nominations from Rexford G. Tugwell as undersecretary of agriculture in 1934 through the major brain truster Thurman W. Arnold as assistant attorney general in charge of the Antitrust Division in 1938, to Harry Hopkins, the president s alter-ego and "mister welfare" as commerce secretary, also in 1938 were unsuccessfully opposed by the conservatives. Roosevelt's last liberal appointee, former Vice President Henry Wallace as commerce secretary in 1945, was bitterly opposed by conservatives, who failed to block his appointment.

This era was highly represented by ideology. The New Deal was all pervasive, and Roosevelt held great majorities in Congress to defeat any Republican measures. The Republican war against the president's appointments represented frustration in the inability to undo the New Deal one way or another. The only institution in which the Republicans had a majority was the Supreme Court. President Roosevelt tried unsuccessfully to pack the court in 1938, which could have cost him the presidency in 1940.

The current battle over Mr. Ashcroft in many ways represents the ideological conditions of the 1930s. The leading Democratic lobbyists are reminiscent of the Republicans of the 1930s fighting an uphill battle against President-elect George W. Bush. Mr. Bush is not FDR, but the ideological struggle between progressives and conservatives is as serious now as it was in the '30s. The distinctions between conservatives and liberals have never been clearer than the ones between the president-elect, represented by his corporate conservative Cabinet choices, and the Democratic senators. The Senate Democrats are making a liberal progressive statement in their opposition to Mr. Ashcroft and President-elect George W. Bush. Therefore, the battle will be over which ideology will prevail in the next four years, with tremendous implications for policy and central decision making being established by the Bush administration.

For George W. Bush, the battle over the nomination of Mr. Ashcroft is the battle over the future of his philosophy and administration. He cannot afford to lose this battle.

Amos Perlmutter is a professor of political science and sociology at American University and editor of the Journal of Strategic Studies.


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