How the Confirmation Circus Betrays Constitutional Judgment

Let me say something that will make both sides uncomfortable: the modern confirmation hearing process is an unconstitutional, extra-legal abomination that neither the Founders nor any serious constitutional scholar would recognize. It has become a weapon of partisan obstruction, a theater of character assassination, and a de facto legislative veto over the executive branch. The American people are the ones who suffer.

I know that is a strong claim. Let me prove it.

What the Constitution Actually Says

The Appointments Clause in Article II is remarkably brief. The President 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. Notice what it does not say. It does not say the Senate gets to extract policy promises. It does not say the Senate gets to impose a two-thirds supermajority requirement on executive branch nominees. It does not say a single senator can place a hold, run out the clock, or demand that a nominee pledge allegiance to a specific piece of legislation. And it most certainly does not say that forty-one senators can kill a nomination by silent filibuster, never having to explain their vote to the American people.

The word advice in 1787 meant counsel, not veto power over the entire executive branch. The word consent meant checking for basic character and competence. It was not conducting an ideological inquisition designed to extract concessions or manufacture disqualification.

Alexander Hamilton explained in Federalist No. 76 that the President's sole responsibility for appointments would beget a livelier sense of duty. The Senate's role was a check upon a spirit of favoritism and to prevent the appointment of unfit characters. Unfit. Not insufficiently progressive. Not too conservative. Not someone who once wrote an op-ed the chairman did not like. Unfit meant dishonest, incompetent, or corrupt.

How We Got Here

The Founders built a system of separated powers, not a parliamentary system where the legislature chooses the executive. They knew, as Madison wrote in Federalist 51, that ambition must be made to counteract ambition. The President needs his own team to execute the laws. The Senate checks for corruption and gross unfitness. That is it.

But over the last several decades, we have allowed a slow-motion constitutional coup. The Senate has turned confirmation hearings into a policy-making apparatus where senators demand that nominees commit to specific policy positions, effectively legislating from the confirmation dais. It has become a character assassination factory where nominees are presumed guilty of some hidden agenda until they prove otherwise, often under oath about things they cannot possibly know. And it is a procedural black hole with unprecedented delays, blanket holds, and filibusters of executive branch nominees who are constitutionally entitled to an up-or-down vote.

Consider the historical arc. For most of American history, the Senate confirmed executive branch nominees with little fanfare. The Cabinet was usually seated within days of a new administration. Even controversial judicial nominees received votes within weeks. Robert Bork's 1987 hearing lasted a week and produced a vote in two months. At the time, that was considered a protracted fight.

Now look at us. We have had Cabinet nominees wait six months for a floor vote. We had a Supreme Court nominee, Merrick Garland, denied even a hearing for nearly a year. That was a constitutional crisis that the Founders would have recognized as a legislative usurpation of the appointment power. Both parties have played the game. Once the precedent was set that a minority could block a President's appointments indefinitely, the system broke.

The Inversion of Presumption

Here is the real perversion. The confirmation process now operates on an inverted burden of proof. A qualified, accomplished nominee appears before a committee, and the presumption is that he or she is a secret radical who must be interrogated for days on end until proving otherwise. Imagine if a jury started a trial assuming the defendant was guilty. That is what we have done to nominees. We have turned advice and consent into presume and harass.

And it gets worse. Senators now demand that nominees answer for every stray comment they ever made, every academic paper they co-authored, every case they argued as a lawyer. This is not advice and consent. It is a fishing expedition designed to manufacture disqualification.

Thomas Sowell, in his book Knowledge and Decisions, warned about the tendency to treat every human life as a collection of statements to be adjudicated rather than a record of accomplishment to be evaluated. That is exactly what we have done. A nominee who wrote an op-ed twenty years ago questioning a regulation is now asked to disavow it or be branded an extremist. A judge who argued a client's position as a lawyer is asked whether he personally agrees with that position, as if professional advocacy has anything to do with personal belief.

The Extra-Constitutional Pledge

The most dangerous innovation is the pledge. Nominees are now routinely asked to commit to positions on cases or policies that may come before them. A judicial nominee, for example, is pressured to promise how they would rule on a hypothetical case. That is precisely what every ethical canon forbids. An executive branch nominee is asked to promise to implement a policy that is not yet law. This is the Senate effectively appointing itself. It is legislating through confirmation conditions. It is the legislative branch telling the executive that you can have your team only if they agree to our agenda.

That is not in the Constitution. It never was. The Senate's role is to consent or withhold consent to the President's chosen officers, not to negotiate the terms of their service.

Hayek, in The Constitution of Liberty, drew a sharp distinction between the rule of law and government by negotiation. When the Senate starts extracting policy concessions from nominees, it is no longer operating under law. It is operating under ad hoc demands that change with every chairman's whim. That is the opposite of a constitutional republic.

The Practical Carnage

Beyond the constitutional violation, the practical result is disastrous. Talented people refuse to serve. Why would a successful lawyer, doctor, or business leader submit to months of public humiliation for a job that pays a fraction of what they make in the private sector? The process has become so brutal that we get only two kinds of nominees. Those with no other options or those with a messianic sense of duty. Neither produces the best government.

And the delays are crippling. During the Obama administration, the Senate left dozens of executive branch nominees waiting for months. The Export-Import Bank board lacked a quorum for years. The National Labor Relations Board was repeatedly declared unable to function because the Senate refused to confirm nominees. The Trump administration faced similar obstruction at the outset, with half the Cabinet still unconfirmed weeks into the presidency.

The government cannot function when the President cannot staff his own administration. This is not about partisan advantage. It is about basic governance. If the Senate opposes a President's policies, it has a constitutional remedy. Pass legislation, override vetoes, or win the next election. Blocking nominees is not a legitimate alternative.

A Return to First Principles

I am not naive enough to think that partisans will suddenly abandon procedural warfare. But we can at least recognize what we have lost. The confirmation process should be timely with a vote within ninety days of nomination and no exceptions. It should be focused on fitness, meaning character, competence, and honesty, not ideological purity. It should be an up-or-down vote with no filibusters, no holds, and no supermajority requirements for executive branch nominees. And it should be respectful of the executive's right to choose. The Senate checks for corruption, not policy alignment.

The Founders gave us a magnificent system. They designed it to protect liberty by ensuring that each branch could operate within its sphere. That system only works if we respect its boundaries.

The confirmation circus is not just bad theater. It is a constitutional violation that weakens the presidency, deters good people from public service, and leaves the government unable to function. It is time to admit what it is and demand a return to the process the Founders intended.

The Constitution is not a living document we can reshape to suit partisan convenience. It is a fixed law that binds us all. On the subject of appointments, it is perfectly clear. The President chooses. The Senate consents or withholds consent. And then we move on.

That is the system we were given. It is time we started using it again.