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Donald Trump’s appointees: the advice and consent clause

Sometimes presidential nominees are not given a hearing, sometimes they are approved within a week, sometimes by a 51-vote margin, sometimes by a cloture vote, and sometimes they are never voted out of committee.
Sometimes presidential nominees are not given a hearing, sometimes they are approved within a week, sometimes by a 51-vote margin, sometimes by a cloture vote, and sometimes they are never voted out of committee.
Loren Elliott, Associated Press

In Washington there are no guarantees. No one person is entitled to anything, not even the president. It is now time for President-elect Donald Trump to appoint members to his administration. It is a mistake to give too much credence to the power connoted in the word "appoint." Yes, the president can appoint "his people" into positions, but not without the “advice and consent” of the Senate. The president’s power in this matter is equaled by the will of the Senate. It would be folly for Trump to begin his administration without giving this important clause serious consideration.

The Trump team must sit down with senators from both parties to discuss all of his nominees; I would have him spend more time with the “advice and consent” portion of his power. In fact, Ronald Reagan was famous for making several hundred phone calls to members of the Senate regarding his nominees before he nominated them.

But even when the president does adequately consult the Senate, the actual consenting process is encumbered by many arcane caveats and stratagems. Sometimes presidential nominees are not given a hearing, sometimes they are approved within a week, sometimes by a 51-vote margin, sometimes by a cloture vote, and sometimes they are never voted out of committee. It is a conglomerate of practices used at different times. It is generally assumed that the president appoints, but in reality it’s a constant negotiation that has somehow, despite all these moving parts, miraculously worked over the centuries.

Just exactly what “advice and consent” means changes with each administration and each case. The “advice and consent” clause is one of those constitutional provisions that has providentially and continuously worked in our federal system. I believe that this Senate will bend over backwards to give Donald Trump his nominees. If the Senate does not bend to Trump’s will and insists on making cloture, the 60-vote rule, it will probably be because Mr. Trump has not taken the "advice" part of the equation seriously.

Insofar as "consent" is concerned, there may be sometimes when the ideology of a judge or a person is so far out of the mainstream that at least 40 senators feel they should not be approved. The minority party plus some coalition of other senators can almost always stop a controversial nominee. That is why liberal or conservative presidents are forced to accommodate a more moderate figure. Witness Anthony Kennedy, appointed by Ronald Reagan!

While nearly every president has had some nominees rejected or held up, the situation has always been ameliorated because the president considers the “advice and consent” clause seriously. This is the key to the incredibly successful history of federal appointments in our great nation. This clause could bog us down hopelessly, but somehow, in the spirit of compromise, the executive and legislative branch have gotten the job done. Hopefully Donald Trump and his advisers will take the Senate’s “advice and consent” seriously too. It will save everyone a lot of trouble.

Sen. Larry Pressler was a U.S. senator for 18 years and congressman for four years. He is a Rhodes Scholar, Harvard Law graduate and a Vietnam veteran.