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Testimony

Testimony for the Senate Rules Committee on the Modern Filibuster

The modern filibuster devalues the Senate, disrupts Congress, and threatens to derail our government. This testimony, submitted to the Senate Rules Committee, elaborates.

  • Mimi Murray Digby Marziani
  • Diana Lee
Published: May 19, 2010

Testi­mony of The Bren­nan Center for Justice at NYU School of Law [1]

Submit­ted to the U.S. Senate Commit­tee on Rules & Admin­is­tra­tion

For the hear­ing entitled

The Fili­buster Today and Its Consequences

Down­load Testi­mony as pdf

May 19, 2010

Mr. Chair­man and members of the subcom­mit­tee:

During last month’s hear­ing examin­ing the fili­buster, you recog­nized that the fili­buster is an “almost-daily fact of life in the Senate, influ­en­cing how we handle virtu­ally everything debated on the Senate floor.”[2] For the first time in history, fili­busters are so much the norm that a super­ma­jor­ity vote of 60 is assumed neces­sary to conduct regu­lar Senate busi­ness. 

Even more alarm­ing, the frequency of fili­busters contin­ues to rise. Through­out the 1990s, there were, on aver­age, about 29 fili­busters per congres­sional session.[3] This number is ever increas­ing: there were 32 fili­busters in the 107th Congress, 27 in the 108th, and 36 in the 109th. In the 110th Congress, there were approx­im­ately 52 fili­busters – a 44 percent spike from the prior session.  The current Senate hit its “golden” 50th fili­buster in mid-April of this year.[4] Many fear that the Senate is peril­ously close to total break­down.[5]

The modern fili­buster – constant and unprin­cipled – has grave effects upon our demo­cracy. As explained in greater detail below, as it currently oper­ates, the fili­buster deval­ues the Senate as an insti­tu­tion, disrupts Congress’ proper oper­a­tion, and threatens to derail govern­mental checks and balances. “The Fili­buster Today and Its Consequences” is thus not a partisan issue, but one that should concern all who cher­ish our Amer­ican system of govern­ment.       

The Modern Fili­buster Deval­ues the Senate

The Framers inten­ded the Senate to be a delib­er­at­ive insti­tu­tion, differ­ent from the House of Repres­ent­at­ives in both func­tion and char­ac­ter.[6]  With a smal­ler assembly of older members with longer, staggered terms of service, the Senate was inten­ded to balance the “tend­ency to err from fickle­ness and passion” expec­ted from the House.[7]  Proponents of the fili­buster paint it too as a feature of the Senate’s original design, one that facil­it­ates delib­er­a­tion and comprom­ise by extend­ing the period for debate.  A right to unlim­ited debate was not, however, envi­sioned by the Framers.[8] Moreover, and perhaps more to the point of today’s hear­ing, the modern fili­buster seldom fosters delib­er­a­tion and comprom­ise. 

In the contem­por­ary Senate, the fili­buster is relent­lessly wiel­ded as a tool of obstruc­tion, driven by partisan or stra­tegic motives.[9] Last fall, for instance, a fili­buster blocked a bill to extend unem­ploy­ment bene­fits for weeks, even after the House approved the meas­ure with substan­tial bipar­tisan support.  The hold-up had little to do with the merits of the bene­fits – senat­ors were appar­ently squab­bling about unre­lated issues.[10] Incred­ibly, when the bill finally reached the Senate floor, it passed unan­im­ously.[11] Simil­arly, in Febru­ary of this year, Senator Richard Shelby announced that he would place a blanket hold on every pending exec­ut­ive nomin­a­tion (70 in total), thereby hold­ing the Senate ransom to obtain earmarked fund­ing for his home state of Alabama.[12] The Senator made no pretences that his holds were based on objec­tions to any nominee; instead, he was seek­ing a stra­tegic bargain­ing posi­tion.[13] Indeed, a review of voting records shows that some senat­ors simply refuse to agree to end debate and allow a vote as a matter of course.[14] Presum­ably, they believe there is polit­ical advant­age in continu­ously seek­ing to block all legis­lat­ive progress.     

Not only does the modern fili­buster fail to advance substant­ive delib­er­a­tion, it often discour­ages public debate. Today’s “stealth” fili­buster does not require debate from, or even the pres­ence of, the fili­bus­ter­ing senator.[15] Instead, the mere threat of a fili­buster prevents votes from reach­ing the floor.[16]  If debate occurs at all, it is blocked from public view; deals are struck in back­rooms behind closed doors, with no offi­cial record of the proceed­ings. As one legal academic bluntly put it, “[t]his cannot be called a proced­ure that enhances the qual­ity of delib­er­a­tion or protects the free speech of indi­vidual senat­ors.”[17]

Often, to over­come para­lysis, the major­ity must appease indi­vidual Senat­ors whose votes are needed to reach a super­ma­jor­ity. This provides substan­tial lever­age to these pivotal few and conces­sions are regu­larly made that do not promote the collect­ive good. For instance, before agree­ing to supply the 60th vote for the recent health care reform bill, one senator notori­ously nego­ti­ated special federal fund­ing for the cost of Medi­care expan­sion in his home state. As this example and others show,[18] a legis­lat­ive process held host­age by the fili­buster repeatedly yields inco­her­ent and comprom­ised results.

Finally, the modern fili­buster has spurred an obses­sion with proced­ure that threatens to take preced­ence over substant­ive lawmak­ing.  For example, as witnessed in the recent health care reform debate, legis­lat­ors increas­ingly force bills through altern­at­ive proced­ural routes – like recon­cili­ation – in order to beat the fili­buster.[19]  Senat­ors also frequently employ a proced­ural tactic called “filling the amend­ment tree.”  Because Senate rules restrict the number of amend­ments pending at any given time, the major­ity leader can shut out all other, poten­tially germane, amend­ments by offer­ing one amend­ment after another, i.e., occupy­ing all avail­able branches of the tree.[20]  In these ways and others, time that should be spent on policy delib­er­a­tion is wasted on an endless game of proced­ural chess, in which success is meas­ured not by the passing of effect­ive legis­la­tion, but by the advance­ment of indi­vidual or party goals.      

Relent­less obstruc­tion deval­ues the Senate, leav­ing it far from the distin­guished insti­tu­tion envi­sioned by our Framers. Even worse, however, is that the Senate’s dysfunc­tion is uncon­tain­able; it taints Congress as a whole.

The Modern Fili­buster Disrupts Congress

Under Article I, section VII of the Consti­tu­tion, a bill must pass the Senate and the House before it may be enacted into law.[21]  As legal schol­ars have force­fully argued, the term “passed” embod­ies a prin­ciple of major­it­ari­an­ism that binds both cham­bers of Congress.[22]  The Senate’s current oper­a­tion, requir­ing a de facto super­ma­jor­ity vote for ordin­ary legis­lat­ive action, thus offends consti­tu­tional intent.[23]  Moreover, the grid­lock caused by this super­ma­jor­it­arian require­ment alters the balance of power between the Senate and the House, disrupt­ing the Consti­tu­tion’s bicam­eral design. 

When a minor­ity of the Senate uses the fili­buster to block that cham­ber’s proceed­ings, it sabot­ages the over­all legis­lat­ive process.  In this way, and as the Senate currently oper­ates, 41 senat­ors enjoy a dispro­por­tion­ately large, negat­ive power over the lawmak­ing process.

A minor­ity veto of this sort enables a polar­ized, unified minor­ity party determ­ined to oppose the main thrust of the major­ity’s agenda to bring govern­ment to a halt.  The minor­ity cannot itself govern, of course.  But neither can the major­ity in the pres­ence of this kind of veto and polar­ized parties.[24]   

Unsur­pris­ingly, whereas bills used to be blocked by both cham­bers in roughly equal number, today most legis­la­tion dies in the Senate.[25]  This continu­ous threat of death by fili­buster provides the Senate with a substan­tial bargain­ing advant­age vis-à-vis the House, partic­u­larly during confer­ence nego­ti­ations.[26]

In addi­tion, there is little doubt that the modern fili­buster in fact prevents both cham­bers from fulfilling Congress’ Article I duties.  The self-perpetu­at­ing pattern of an increas­ing number of fili­busters and grow­ing work­load makes it virtu­ally impossible for the Senate to accom­plish all of its duties; [27] as a result, key legis­lat­ive items are blocked from the Senate floor because there is not enough time to go around.  Appro­pri­ations bills are a prime example.  By Consti­tu­tional design, these bills origin­ate in the House before moving to the Senate for amend­ment.[28]  Although, year after year, the House submits such meas­ures to the Senate in a timely fash­ion, Congress consist­ently fails to enact appro­pri­ations bills by dead­line.[29]  The consequence is substan­tial – agen­cies are left adrift and inef­fec­tual, wonder­ing if they will ever receive suffi­cient fund­ing for their work.

The fili­buster’s impact thus reaches far beyond the walls of the Senate. Congres­sional dysfunc­tion, in turn, has even graver implic­a­tions for our demo­cracy writ large.    

The Modern Fili­buster Threatens to Derail our System of Govern­ment

Our Consti­tu­tion “enjoins upon its branches separ­ate­ness but inter­de­pend­ence, autonomy but reci­pro­city”[30] – a system integ­ral to the proper func­tion­ing of our govern­ment.  “The exist­ence of checks and balances between rival­rous branches, each with an incent­ive to monitor and prevent the other’s misbe­ha­vior,” ensures intragov­ern­mental account­ab­il­ity.[31]  This struc­ture “allows govern­ment offi­cials not just to report each other’s bad beha­vior to the elect­or­ate, but also to pree­mpt it through the exer­cise of consti­tu­tional powers.”[32]  Our coun­try’s Framers recog­nized this arrange­ment as a neces­sary supple­ment to the elect­oral account­ab­il­ity provided by demo­cratic elec­tions.[33]  The modern fili­buster, however, threatens to derail this care­ful balance.

To start, the modern fili­buster impacts the rela­tion­ship between the legis­lat­ive and exec­ut­ive branches in a number of ways.  First, Congres­sional stale­mate is likely to push the Pres­id­ent to seek policy change through admin­is­trat­ive action.[34]  The result is a troub­ling expan­sion of exec­ut­ive power that is likely to remain unchecked.  Indeed, as then-Professor Elena Kagan has chron­icled, this is precisely what happened during Bill Clin­ton’s pres­id­ency. [35]  Pres­id­ent Clin­ton respon­ded to legis­lat­ive inac­tion by issu­ing numer­ous direct­ives to admin­is­trat­ive agen­cies – ulti­mately, with little resist­ance from the deeply-divided Congress.

[Pres­id­ent Clin­ton’s] polit­ical calcu­lus depended on a judg­ment, confirmed in prac­tice, that Congress would fail to over­ride pres­id­en­tial direct­ives. . . . [I]n general, a Repub­lican Congress proved feck­less in rebuff­ing Clin­ton’s novel use of direct­ive author­ity – just as an earlier Demo­cratic Congress, no less rhet­or­ic­ally inclined, had proved incap­able of thwart­ing Reagan’s use of a newly strengthened regu­lat­ory review process.[36]    

Second, the modern fili­buster may prevent Congress from prop­erly monit­or­ing the exec­ut­ive branch for another reason.  When a substan­tially large, cohes­ive group of senat­ors – such as all members of the minor­ity party – removes itself from the legis­lat­ive process by continu­ously oppos­ing initi­at­ives and never affirm­at­ively lawmak­ing, the major­ity party is left with full over­sight respons­ib­il­it­ies.[37] When that same major­ity party controls the Senate and the Pres­id­ency, as is currently the case, Congress is unlikely to aggress­ively monitor exec­ut­ive actions. Now, the minor­ity party has only a singu­lar, blunt tool – the fili­buster – that incentiv­izes obstruc­tion, not action.  Demo­cracy would be better served if the minor­ity were instead empowered by more tailored meth­ods to monitor exec­ut­ive power.[38]

Third, when relent­less minor­ity obstruc­tion prevents the Pres­id­ent from fulfilling his respons­ib­il­it­ies under the Appoint­ments Clause, the fili­buster impinges upon the Pres­id­ent’s consti­tu­tional duty to “take Care that the Laws be faith­fully executed.”[39]  Anti­cip­at­ing that “the Pres­id­ent would be less vulner­able to interest-group pres­sure and personal favor­it­ism than would a collect­ive body,”[40] the Framers placed primary respons­ib­il­ity to make appoint­ments with the Pres­id­ent.  Accord­ingly, the Pres­id­ent “shall nomin­ate” and “shall appoint” high-rank­ing exec­ut­ive officers, while the Senate provides “Advice and Consent.” [41]  Although requir­ing the Senate’s approval provides an essen­tial check on Pres­id­en­tial power, a minor­ity of senat­ors has no consti­tu­tional right to endlessly delay or actu­ally veto the Pres­id­ent’s picks.  In fact, during the Consti­tu­tional Conven­tion, James Madison adam­antly rejec­ted any arrange­ment that could permit a nation­ally popu­lar minor­ity to control federal appoint­ments.[42]    

Moreover, there is evid­ence that the modern fili­buster is actu­ally prevent­ing the Pres­id­ent from execut­ing his duties.  On March 27th of this year, after wait­ing an aver­age of 214 days per nomin­a­tion, Pres­id­ent Obama resor­ted to tempor­ary recess appoint­ment of 15 indi­vidu­als nomin­ated to serve in key admin­is­trat­ive agen­cies.[43]  He explained,

Most of the men and women whose appoint­ments I am announ­cing today were approved by Senate commit­tees months ago, yet still await a vote of the Senate.  At a time of economic emer­gency, two top appointees to the Depart­ment of Treas­ury have been held up for nearly six months.  I simply cannot allow partisan polit­ics to stand in the way of the basic func­tion­ing of govern­ment.

Indeed, as of May 18th, there were 133 non-judi­cial, civil­ian nomin­a­tions pending before the Senate.[44]

Finally, the modern fili­buster also impedes Congress’ abil­ity to check the Courts’ power of judi­cial review.  As envi­sioned by the Consti­tu­tion, Congress can respond to judi­cial decisions in a vari­ety of ways – by fixing uncon­sti­tu­tional provi­sions of other­wise valid stat­utory schemes, by hold­ing evid­en­tiary hear­ings to create a factual record in support of legis­la­tion, by clari­fy­ing improp­erly vague laws, and so on.  A Congress para­lyzed by the fili­buster, however, has little abil­ity to coun­ter­act or refine judi­cial decision­mak­ing.

There is thus no ques­tion that the modern fili­buster disrupts the balance of powers between the legis­lat­ive, exec­ut­ive and judi­cial branches.  Upset­ting our Consti­tu­tion’s struc­tural safe­guards leaves our demo­cracy in a vulner­able state.  Espe­cially now, during this era of war, economic crises, and social unrest, we cannot afford to allow the Senate’s proced­ural dysfunc­tions to derail our entire system of govern­ment.    

Conclu­sion

And so, once again, we encour­age you to continue this search­ing assess­ment of the func­tion­ing of the Senate. As this Commit­tee works to remedy the current state of affairs, we urge you to consider the ways in which Senate dysfunc­tion harms our demo­cracy and to focus on solu­tions that advance demo­cratic values.


[1] The Bren­nan Center for Justice at NYU School of Law is a nonpar­tisan law and policy insti­tute that focuses on funda­mental issues of demo­cracy and justice. This testi­mony was primar­ily authored by Mimi Marzi­ani, coun­sel and Katz Fellow at the Bren­nan Center. Diana Lee, a researcher at the Center and special assist­ant to the Center’s exec­ut­ive director, provided invalu­able research and writ­ing assist­ance. Today’s testi­mony supple­ments our April 22, 2010 submis­sion, avail­able at http://rules.senate.gov/public/?a=Files.Serve&File_id=a36a886b-dcaa-4290-a8c8-cb737f­b16938

[2] Examin­ing the History of the Senate Fili­buster: 1789–2008, Hear­ing before the Senate Comm. on Rules & Admin­is­tra­tion 1 (April 22, 2010) (state­ment of Senator Charles Schu­mer, Chair­man). 

[3] All fili­buster stat­ist­ics are taken from Barbara Sinclair, The New World of U.S. Senat­ors, in Congress Recon­sidered 7 (9th ed. 2009).

[4] Dana Milbank, No Celeb­ra­tion of the 50th Fili­buster, Wash. Post, Apr. 13, 2010.

[5] See Sinclair, supra n. 3, at 20; Thomas Mann & Norman Ornstein, The Broken Branch 212–216 (2006); Paul Krug­man, A Danger­ous Dysfunc­tion, N.Y. Times, Dec. 21, 2009, at A31.

[6] In the Feder­al­ist Papers, James Madison writes that the more strin­gent qual­i­fic­a­tions of a senator “is explained by the nature of the senat­orial trust; which, require[es] greater extent of inform­a­tion and stabil­ity of char­ac­ter.”  The Feder­al­ist No. 62, at 342 (Barnes & Noble Ed., 2006).

[7] G. J. Grahm & S. G. Grahm, Found­ing Prin­ciples of Amer­ican Govern­ment 116 (1984).

[8] Josh Chafetz & Michael Gerhardt, Debate: Is the Fili­buster Consti­tu­tional?, 158 Univ. Penn. L. Rev. PENNum­bra 245, 250–51 (2010) (Chafetz Open­ing Stmt.); see also Sarah Binder & Steven Smith, Polit­ics or Prin­ciple? Fili­bus­ter­ing in the United States Senate 30–33 (1997) (describ­ing early devel­op­ment of rules in House and Senate).

[9] See Binder & Smith, supra n. 8, at 90–92; Gerard Magliocca, Reform­ing the Fili­buster, 105 Nw. U. L. Rev. 1, 25 (forth­com­ing 2011), avail­able at http://ssrn.com/abstract=1564747; Gregory Wawro & Eric Schick­ler, Fili­buster: Obstruc­tion and Lawmak­ing in the U.S. Senate 13 (2006).

[10] See Jessica Brady & Emily Pierce, GOP Run Over in Game of Chicken, Roll Call, Nov. 5, 2009, http://www.rollcall.com/issues/55_53/news/40279–1.html (“[A] 29-day impasse [] finally broke this week when Reid filed motions to end the Repub­lic­ans’ attemp­ted fili­buster and dared them to vote against the polit­ic­ally popu­lar meas­ure. No Repub­lic­ans opposed. . . .”); Mike Lillis, Expan­sion of Unem­ploy­ment Insur­ance Stalled by ACORN, Immig­ra­tion Amend­ments, Wash. Inde­pend­ent, Oct. 20, 2009, http://wash­ing­toninde­pend­ent.com/64513/expan­ded-unem­ploy­ment-bene­fits-stalled-by-gop-acorn-immig­ra­tion-amend­ments (“The stalling of legis­la­tion to expand unem­ploy­ment insur­ance has little to do with the bene­fit itself.”). 

[11] U.S. Senate, Roll Call Votes 111th Congress on Passage of the Bill (H.R. 3548 as Amended), http://www.senate.gov/legis­lat­ive/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=111&session=1&vote=00334 (last visited May 14, 2010).

[12] Holds placed for no reason other than to obstruct are, for all prac­tical purposes, indis­tin­guish­able from a threat to fili­buster.  See Chafetz & Gerhardt, supra n. 8, at 260–61 (Chafetz Clos­ing Stmt.).   

[13] Accord­ing to Senator Shelby, he staged the delays due to “unad­dressed national secur­ity concerns.”  Scott Wilson & Shail­agh Murray, Sen. Richard Shelby of Alabama Hold­ing Up Obama Nomin­ees for Home-state Pork, Wash. Post, Feb. 6, 2010.

[14] Senator Jim DeMint, for instance, has voted against 92% of the cloture motions filed in this congres­sional session; Senator Jim Bunning has voted against 91%.  Fili­bus­ted, The Whole List, http://fili­bus­ted.us/senat­ors (last visited May 14, 2010).  Express­ing this mind­set, one top senator recently declared that “[t]here will be no cooper­a­tion [with the major­ity party] for the rest of the year.”  Edit­or­ial, After Health Reform, Is Anyone Will­ing to Comprom­ise?, Wash. Post, Mar. 24, 2010.

[15] See Cath­er­ine Fisk & Erwin Chemer­insky, The Fili­buster, 49 Stan. L. Rev. 181, 200–09 (1997) (describ­ing creation of modern “stealth” fili­buster).

[16]See Wawro & Schick­ler, supra n. 9, at 259–260; Fisk & Chemer­insky, supra n. 15, at 203; Magliocca, supra n. 9, at 24.

[17] See Magliocca, supra n. 9, at 24.

[18] Another example: in March 2009, Senator Robert Menen­dez placed a hold on two crucial envir­on­mental nomin­ees to gain lever­age on an unre­lated issue concern­ing Cuba.  Juliet Eilperin, Nomin­a­tions on Hold For 2 Top Science Posts, Wash. Post, Mar. 3, 2009.

[19] Thomas Mann, Norman Ornstein & Raffaela Wake­man, Recon­cil­ing With the Past, N.Y.Times, Mar. 7, 2010, at WK12; see also Binder & Smith, supra n. 8, 192–194.

[20] See Examin­ing the History of the Senate Fili­buster: 1789–2008, Hear­ing before the Senate Comm. on Rules & Admin­is­tra­tion 3 (April 22, 2010) (state­ment of Senator Pat Roberts); Cong. Research Service, Senate Amend­ment Process: General Condi­tions and Prin­ciples (2001).

[21] Const. art I, § 7.  As the Supreme Court has explained, “[t]he divi­sion of the Congress into two distinct­ive bodies assures that the legis­lat­ive power would be exer­cised only after oppor­tun­ity for full study and debate in separ­ate settings.”  INS v. Chadha, 462 U.S. 917, 951 (1982).

[22] See Chafetz & Gerhardt, supra n. 8, at 249 (Chafetz Open­ing Stmt.) (citing Jed Ruben­feld, Rights of Passage: Major­ity Rule in Congress, 46 Duke L.J. 73, 83 (1996)). 

[23] There is substan­tial evid­ence that the Framers inten­ded the Senate to oper­ate under major­ity voting rules.  The Consti­tu­tion specific­ally requires a super­ma­jor­ity vote in seven extraordin­ary situ­ations, imply­ing that a major­ity vote would be used for all other legis­lat­ive action.  The Consti­tu­tion also specifies that a simple major­ity “shall consti­tute a Quorum to do Busi­ness.”  And, Article I, Section 3, Clause 4 provides further support.  That clause, which states that the Vice Pres­id­ent “shall have no Vote, unless [the Senate] be equally divided,” neces­sar­ily assumes major­ity voting.  Finally, the Feder­al­ist Papers expressly argue against super­ma­jor­ity require­ments.  See Fisk & Chemer­insky, supra n. 15, at 239–241; Binder & Smith, supra n. 8, at 30–33; see also The Feder­al­ist No. 22, at 119–121 & No. 75, at 415–417 (Alex­an­der Hamilton) (Barnes & Noble ed., 2006); The Feder­al­ist No. 58, at 326–237 (James Madison) (Barnes & Noble ed., 2006).

[24] Richard Pildes, Ungov­ern­able Amer­ica?: The Causes and Consequences of Polar­ized Demo­cracy (presen­ted at Thomas M. Jorde lecture, April 14, 2010), avail­able at http://www.law.nyu.edu/ecm_dlv3/groups/public/@nyu_law_website__news/docu­ments/docu­ments/ecm_pro_065536.pdf.  The power of this minor­ity veto is acutely felt by members of the House.  Wiscon­sin Congress­man David Obey, announ­cing his retire­ment after over 40 years of public service, lamen­ted: “The wear and tear is begin­ning to take its toll. . . . There has to be more to life than explain­ing the ridicu­lous, account­ab­il­ity-destroy­ing rules of the Senate to confused, angry, and frus­trated constitu­ents.”  State­ment by Congress­man David R. Obey (May 5, 2010), http://www.obey.house.gov/index.php?option=com_content&task=view&id=924.

[25] Sinclair, supra n. 3, at 18.

[26] See Josh Schatz, House Stymied by Senate Rules, Cong. Q., April 19, 2010, at 960; see also Bruce Oppen­heimer, The Process Hurdles: Energy Legis­la­tion from the OPEC Embargo to 2008, in Congress Recon­sidered 300–03 (9th ed. 2009) (describ­ing House caving to Senate due to fili­buster threat).

[27] See Binder & Smith, supra n. 8, at Table 1–3.

[28] Cong. Research Service, Over­view of the Author­iz­a­tion-Appro­pri­ations Process (2008).

[29] Thomas Mann & Norman Ornstein, Is Congress Still the Broken Branch?, in Congress Recon­sidered Table 3–3 (9th ed. 2009).

[30] Young­stown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952).

[31] Daryl Levin­son & Richard Pildes, Separ­a­tion of Parties, Not Powers, 119 Harv. L. R. 2311, 2343 (2006) (citing Thomas Sargen­tich, The Limits of the Parlia­ment­ary Critique of the Separ­a­tion of Powers, 34 Wm. & Mary L. Rev. 679, 718 (1993) and W.B. Gwyn, The Mean­ing of the Separ­a­tion of Powers 16 (1965)).

[32] Id. at 2344.

[33] The Feder­al­ist No. 51, at 288 (James Madison) (Barnes & Noble ed., 2006) (“In fram­ing a govern­ment which is to be admin­istered by men over men, the great diffi­culty lies in this: you must first enable the govern­ment to control the governed; and in the next place oblige it to control itself. A depend­ence on the people is, no doubt, the primary control on the govern­ment; but exper­i­ence has taught mankind the neces­sity of auxil­i­ary precau­tions.”).

[34] See Levin­son & Pildes, supra n. 31, at 2362.

[35] Elena Kagan, Pres­id­en­tial Admin­is­tra­tion, 114 Harv. L. Rev. 2245, 2311–15 (2001).

[36] Id. at 2313–2314. 

[37] Pildes, supra n. 24, at 42. 

[38] As Professor Pildes has argued,

[I]f we want to empower congres­sional checks on exec­ut­ive power that are more likely to be effect­ive during unified govern­ment, we can consider meas­ures that would give the minor­ity party, which has the appro­pri­ate incent­ives, greater tools to over­see the exec­ut­ive branch.  Some other demo­cra­cies do so.  As I and others have described, we might consider giving the minor­ity control of a certain over­sight commit­tee, such as an audit­ing commit­tee; enabling the minor­ity to call hear­ings under certain circum­stances; or other­wise increas­ing the oppos­i­tion party’s abil­ity to get inform­a­tion from the exec­ut­ive branch. These meas­ures are not minor­ity-veto rights, but ways of enabling more effect­ive over­sight. 

Id.

[39] Const. art II, § 3; see also Const. art II, § 2.  As federal judges are nomin­ated for life, judi­cial nomin­a­tions raise differ­ent consti­tu­tional consid­er­a­tions.  The instant discus­sion deals with non-judi­cial nomin­a­tions only.

[40] Edmond v. United States, 520 U.S. 651, 659 (1997).  Indeed, Alex­an­der Hamilton was adam­ant that the Pres­id­ent was better posi­tioned than Congress to make federal appoint­ments. 

[I]n every exer­cise of the power of appoint­ing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, parti­al­it­ies and anti­path­ies, attach­ments and anim­os­it­ies, which are felt by those who compose the assembly.  The choice which may at any time happen to be made under such circum­stances, will of course be the result either of a victory gained by one party over the other, or of a comprom­ise between the parties.  In either case, the intrinsic merit of the candid­ate will be too often out of sight.

The Feder­al­ist No. 76, at 419 (Alex­an­der Hamilton) (Barnes & Noble ed., 2006).

[41] Const. art II, § 2.

[42] Adam White, Toward the Framers’ Under­stand­ing of “Advice and Consent”: A Histor­ical and Textual Inquiry, 29 Harv. J. L. & Pub. Pol’y 103, 116–17, 123–24 (2005).

[43] Press Release, The White House, Pres­id­ent Obama Announces Recess Appoint­ments to Key Admin­is­tra­tion Posi­tions (March 27, 2010), http://www.white­house.gov/the-press-office/pres­id­ent-obama-announces-recess-appoint­ments-key-admin­is­tra­tion-posi­tions.

[44] U.S. Senate, Nomin­a­tions in Commit­tee (Civil­ian), http://www.senate.gov/pagelay­out/legis­lat­ive/one_item_and_teas­ers/nom_cmtec.htm (last visited May 15, 2010).