As this country and our governing system moves toward the inauguration of Donald Trump there is likely to be much talk about two powers and procedures that are key activities of the United States Senate: Advice and Consent and the filibuster. Advice and Consent is a constitutionally stated power of the Senate to rule on the appointment of the president’s cabinet members, high level appointees and ambassadors to foreign countries. The power of Advice and Consent begins with the scheduling of an open hearing in the Senate Judiciary Committee where the appointee is questioned by members from both parties followed by a vote to confirm or deny confirmation. The vote then proceeds to the full Senate for a final vote. The filibuster is a procedure not mentioned in the constitution that is used by the Senate under its rules to delay, weaken or curtail legislative proposals by an individual senator or group of senators refusing to relinquish control of the debate process. The filibuster is often a procedure used by the minority party to make it difficult for the majority party to pass legislation.
The Senate’s power of Advice and Consent is one of the more visible restraints on the president’s appointment prerogative. Usually, members of the Judiciary Committee rely on background checks performed by the FBI to determine if the appointee has engaged in alleged criminal activity or whose behavior, values, and past actions may make him/her unworthy to serve. Also, the Judiciary Committee may call witnesses who can shed further light on the suitability of the candidate. In most instances the appointee will not face opposition from the Committee and the president’s choice is approved with little controversy, but there have been instances in which the Advice and Consent power has become controversial and a challenge to the wishes of the President.
The appointment of Clarence Thomas to the Supreme Court by President George H.W. Bush in 1991 is such an example. During the Committee hearings there were allegations contained in a confidential FBI report which stated that Thomas engaged in sexual harassment of a university professor named Anita Hill while she worked with Thomas at the Department of Education and the Equal Employment Opportunity Commission. The hearing became contentious and partisan as the Democratic majority in the Committee sought to stop the confirmation. The hearing turned into a media event as both parties and groups supporting Hill and Thomas weighed in on the confirmation debate. After much political wrangling within the Committee the Thomas appointment was sent to the full Senate without recommendation by a vote of 13-1. Thomas eventually was approved by the full Senate by a vote of 52-48, one of the closest votes in a century of appointment deliberations.
Donald Trump’s recent election to a second term as president may set the stage for another contentious debate over appointees. Trump has put forward candidates for cabinet positions that are controversial and in the view of some from both parties are unqualified to serve. In particular, Secretary of Defense designee Peter Hegseth, Secretary of Health and Human Services designee Robert F. Kennedy Jr., Director of National Intelligence designee Tulsi Gabbard and Director of the Federal Bureau of Investigation designee Kash Patel are viewed as likely to face stiff questioning about their capability to serve in the President’s cabinet. Since the Republicans have a narrow majority in the Senate (53-47), the loss of but a few Republicans could deny these picks of the president and force him to name a new designee. Already, Trump’s pick for Attorney General former U.S. Representative Matt Gaetz voluntarily withdrew his name from consideration by the Judiciary Committee and the full Senate over questions related to alleged sexual activity with a minor.
While the Senate’s use of its power of Advice and Consent can be a regular means of approving a presidential appointment, its use of the filibuster procedure is infrequent and is often subject to partisan infighting. For most of the history of the Senate, the use of the filibuster was sparse. It was only when the Senate entered the modern period, particularly during the Civil Rights Era, that the filibuster was employed more often. In 1957 South Carolina Senator Strom Thurmond broke the record for a filibuster by speaking against the Civil Rights Act of 1957. Thurmond spoke for 24 hours and 18 minutes. Although Thurmond was able to use the filibuster to delay the Civil Rights Act, it eventually passed. Later in 1964 southern senators filibustered new civil rights legislation by holding the floor for 75 hours under the leadership of West Virginia Senator Robert Byrd. After days of filibustering by Byrd and other southern senators, a procedure called cloture was invoked (60 or more votes by the Senate) which ended the delaying tactic allowing for a final vote and passage.
Today the filibuster remains a tactic that is usually employed by the minority party in the Senate and is a reflection of deep-seated partisan polarization. During the presidency of Joe Biden when the Democrats were in control of the Senate, the Republican minority leader Mitch McConnell led his colleagues in an organized effort to stop legislation not by a long-drawn-out debate process but rather by working as a unified group to limit the ability of the majority party to bring the measure to the floor of the Senate for a vote. The efforts by the Republicans to tweak the filibuster process to make it difficult to pass legislation set the stage for efforts by Senate reformers primarily in the Democratic Party to bring an end to what was viewed as an undemocratic tactic. Such efforts to establish majority vote as the final step in the legislative process have to date been unsuccessful. Today the threat of filibuster gridlock remains. In fact, now that the Democrats are the minority party in the Senate, there is support for keeping the filibuster process in place as it benefits the party that is in the opposition. There is no better way to delay or stop legislation than taking steps to use debate tactics as a means of limiting the power of the majority.
Both the Senate’s Advice and Consent power and filibuster process raise questions about whether our system of legislative decision making follows the long-held belief that majority rule and bipartisan consensus building should prevail rather than polarizing partisan politics. In today’s highly charged political environment it is safe to say that approving presidential appointments and passing legislation too often calls into question the Congress’ commitment to democratic values and principles and a belief in cooperation and compromise rather than gridlock.