Advice and consent

                According to Article 2 Section 2 of the Constitution, the Senate has the power to advise the President and give their consent to appointments made to the executive and judicial branch of government. The Senate must also give their consent to any international Treaty signed by the President. In all cases, advice and consent powers act as a check upon the power of the Head of State. However, the intentions of the founding fathers must be placed into the context of how politicians act. The partisan atmosphere of Congress makes the whole process of appointment needlessly cumbersome and subject to political posturing rather than reasoned advice from members of the upper chamber. Whilst the framers of the new Republic were prone to underestimate the need for efficiency, it's the actions of politicians that should be blamed for legislative-executive gridlock rather than our founding fathers.

                Of the two chambers, the Senate has traditionally been viewed as less partisan. It was originally created to act as a brake upon populist measures from the House, and until 1913 Senators were not actually elected. Some of that more detached atmosphere remains, but as with much else in Washington DC; the poisonous atmosphere of partisan politics has undermined its whole approach. This is particularly notable when a nominee is put forward for the Supreme Court. The entire process has become far more politicized since the 1980s, with questions framed with the clear intention of seeking to identify the nominee’s ideological leanings. There is also a predilection towards ‘gotcha’ questions that play to the gallery rather than meeting the more noble intentions of the founding fathers.

                There is of course a contrast to be made between unified government, and divided government. Under the former, the nomination process is often straight-forward. This applies even when a nominee is put forward for the Supreme Court. However, given the level of party discipline within American politics it is often necessary for the President’s party to hold a supermajority of around 60 Senators. That way, any potential rebellion from their own ranks could be circumvented. Under divided government, the whole process can become acrimonious and long-drawn out. Once again, the Senate Judiciary Committee offers perhaps the clearest illustration of this point. In the early-1990s, the nomination of Clarence Thomas was so bitter and personal that he compared it to a form of “high-tech lynching.” That said; even the President’s own party can effectively reject his nomination for the highest judicial court in the land. In 2005, Harriet Miers was eventually withdrawn by George W. Bush after concerns were raised by Republican Senators about her lack of legal expertise (although the real reason may well have been her moderate views on abortion).

                It should hardly surprise the reader that a nominee put forward by the President is more likely to gain consent from the Senate during a period of unified government. Taking two recent examples, both Elena Kagan and Sonia Sotomayor faced little objection from a Democrat-controlled Senate. However, the Obama administration has found it more difficult to gain consent from Congress since the Democrats lost their supermajority in the upper chamber back in 2010. For instance, the President was forced to withdraw his initial preference for Secretary of State Susan Rice as part of an intricate bargaining process between the two parties.

                The American system of governance is structured in such a way as to effectively enable a party to derail or slow down the nomination process during divided government. This power may well be used to score political points, although it can of course serve a more worthy purpose in terms of checking the power of the President. Senators from the opposing party do of course have every incentive to cause trouble for the Head of State. For instance, they may well increase support for their own party or even strengthen their own standing within that party. However, few things in politics can be said with absolute certainty. An obstructionist platform can easily backfire and make the opposing party to the President look petty. For example, in 2013 the GOP lost public support due to the shutdown strategy.

                For all the problems facing the President as a result of advice and consent powers, he rarely faces difficulty nominating members to his Cabinet during the early stage of his presidency when his political capital is relatively high. For instance, those Senators elected from his own party may owe a political debt to him via the coattails effect. Alas, this level of political capital drains away during the second term; particularly during the lame-duck stage of his presidency. Having said this, the last nominee to the Cabinet rejected by the Senate occurred in the early stages of Bush senior’s presidency. John Tower was rejected for the post of Defense Secretary on the basis of his personal life, and his relationship with a defense contractor.

                In terms of international Treaties, the Senate can once again limit the power of the President. Under unified government, this rarely occurs. The last time the Senate refused to ratify a Treaty signed by the President when the upper chamber was controlled by his own party dates back to 1935. Refusal to ratify a Treaty can certainly undermine the President’s authority, and it remains one of the more effective checks held by Congress within the realm of foreign policy. This also bears wider resonance for the imperial-imperiled debate concerning the power of the President.