The US Constitution says "[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, ..."
It makes no provision for the Senate to refuse. They may advise 'yes' or they may advise 'no', but to not advise is to deny the Office of the President it's right and duty to appoint.
Article II, Section 2, states "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."
The Constitution does not have things in it that were put there purely for decoration. Everything in it has been strongly argued, so the temporary appointment provision is there as an eventuality for certain conditions. That condition is that the Senate was not in session to do its job of providing advice. Under that condition, it would be until the Senate was next in session to fill the vacancy. The only reason to allow an appointment that "could not wait that long" is the presumption of necessity to fill it quickly. But, to give the Senate it's ability to provide advice on all appointments, who was necessary to make the appointment temporary, at which time, when the Senate is back in session, the same or another appointment could be made while the Senate has the opportunity to advise.
It is only a matter of urgency of having the position filled to do the requisite work that a temporary appointment would be needed.
Ask why the Founding Fathers would put in a temporary appointment provision? It would be because they thought it was needed. Why would it be needed? It would be because the function needed to be done. If the function could wait, why have a temporary appointment at all? It would be because of the importance of the function being filled and the need for it's duties to be executed before who knows when the Congress gets it act together to convene again.
By analogy, filling the position is just as important and urgent when Congress is IN session as when it is not. Consequently, the Senate should be expeditious in providing its yes or no advice in a time no longer that an average recess followed by a session until the next recess - the length of the allowed by a temporary position. It's all very logical.
When Congress passes a bill and sends it to the president to be signed, the president has a sunset limit of 10 days to either sign the bill into law or to veto it.
A vacant congressional seat denies the people representation and is filled as quickly as possible. The same principle needs to be applied to the Supreme Court. Justice delayed is justice denied.
This time limit is one of the checks and balances between the branches of the government. It is a legislative department check on the presidency. It prevents one man from having dictatorial powers over bills. Presently, the filibuster allows one Senator to have dictatorial powers over the President with respect to appointments. That power must be checked.
Like a bill automatically becoming law, the nominee should automatically be appointed if the Senate doesn't act. The Senate should be given a limit of 60 days to approve or disapprove of a presidential nominee.
The founding fathers could not have anticipated the extent to which politics has degenerated in the time since the Constitution was written, hence they did not put a similar time limit on the Senate's approving or disapproving Presidential appointments. We need an amendment to the Constitution to balance the checks between the branches. Here's one:
|Insert the following in Article II. Section 2. between the
second and third paragraphs.
"If an appointment nominee of the President shall not be approved or rejected by the Senate within 60 days after being presented to the Senate, the same shall be appointed, in like manner as if the Senate had approved the appointment."
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|This page was updated by Ralph Kenyon on 2017/08/10 at 01:20 and has been accessed 268 times at 28 hits per month.|