On Confirmations


One of the defining elements of this current moment in American politics is extreme polarization, a harmful state of being that is not unlike an illness of our society. That illness presents a multitude of symptoms, but this essay will focus on one: abuse of the process of Senate confirmation.

The Constitution clearly lays out a process by which the president nominates individuals to hold important government posts and the Senate confirms them. To use the verbiage of the Constitution, the “advice and consent of the Senate” is required to ensure that a president doesn’t harm the country by appointing officials who are not fit to serve; the Senate serves as a governmental bouncer of sorts, keeping dangerous or unqualified candidates out of office.

It’s a smart and simple system, but, like all the brilliant checks and balances enshrined in our Constitution, it can be abused—in this case, by a Senate caucus that places its own political agenda ahead of the good of the country.

History is rife with examples of such partisan abuse, whereby a president finds their nominees needlessly held up or rejected by the opposition party’s Senate delegation. While this is no new trick, the Democratic minority in today’s Senate is embracing the tactic with a vigor perhaps never before seen, as evidenced by confirmation votes that consistently hew close to party lines. This is not normal, and it is not a faithful execution of their Constitutional duties.

Don’t get me wrong: many of President Trump’s federal nominees are clearly unfit for the posts to which they’ve been nominated, for a variety of reasons ranging from corruption to debilitating ignorance, and should not be confirmed. But many others are simply… very conservative, and while liberals like myself and my representatives in the Senate may find their policy ideas repugnant, that does not constitute an acceptable reason to withhold a vote for confirmation.

Senate confirmation was not designed as a process by which to fetter a president with whom one disagrees, but as a safeguard to ensure that the President exercises their prerogative to staff the executive branch and the federal courts responsibly. The Constitution explicitly states that Congress’ purpose is to write laws; deciding who fills government offices falls well outside that purview.

In short, the contentiousness surrounding many of President Trump’s federal nominees—like those of President Obama before him—is evidence that the system is being abused.

This leads to me a particularly contentious confirmation process of which we are currently in the throes: that of Judge Neil M. Gorsuch, President Trump’s nominee for Supreme Court Justice. The problem is, while Judge Gorsuch certainly has the requisite experience and knowledge, he cannot be confirmed.

If that sounds hypocritical given my previous points, I can certainly appreciate that—but there’s a very good reason why Judge Gorsuch is no regular nominee, and why his confirmation could have dire and lasting consequences for our Constitutional system.

President Trump entered office to find a vacancy on the Supreme Court, left by the death of Justice Antonin Scalia. That vacancy occurred in February 2016, barely three-quarters of the way through President Obama’s term in office, Constitutionally prompting the president to appoint a new Justice with the advice and consent of the Senate (a process that usually takes 25 days). Yet in a power grab that brazenly defied the spirit of the Constitution, Senate Republicans refused to so much as hold a hearing for President Obama’s eminently qualified nominee, Judge Merrick Garland.

It was one of the most malicious usurpings of the modern political era. Republicans shirked their Constitutional duty and allowed one of the most critical institutions in our country to deadlock for more than a year, all under the spurious claim that they were “letting the people choose” who the next Supreme Court Justice would be. They committed this act in spite of the Constitution, which makes clear that the people did choose when they voted to reelect President Obama in 2012.

Government aspires to revolve around integrity, honesty, and service, and the highest echelons of our government play too important a role in the world to be marred by blind partisanship or petty vengeance. Nevertheless, to confirm Judge Gorsuch, whose seat belongs to Judge Garland and was President Obama’s to fill, would set a dangerous precedent; it would legitimize partisan exploitation of longstanding norms and traditions, and would serve as a tempting signal that a political party can ignore the Constitution—to their benefit and the country’s detriment—without consequence.

I concede that the effect of this would be the same as revenge, but the motivation—to uphold the rule of law—is pure and necessary, and that matters. Judge Gorsuch is welcome to the next Supreme Court seat that might open up during Trump’s presidency, and Senate Democrats will have no valid basis on which to oppose him—just as Republicans had no basis on which to spurn Judge Garland.

The sad truth is that it appears more and more the case that our current crop of politicians isn’t willing to stand up and break the cycle of partisan escalation. I encourage the people of this country on both sides of the aisle to take matters into their own hands in the most effective way possible: at the ballot box. When your representatives are up for reelection, reflect on whether they’ve put the good of the country or the good of the party first. Democrat or Republican, take this into account: have you seen them vote against a qualified nominee because they wear the wrong label, or willfully ignore the Constitution? If so, find a candidate who is more deserving of your vote. And if none appear, run for office yourself. Our country needs you.

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