Published March 1998 — Download PDF of the original newspaper column
Byrd's-Eye View By U.S. Senator Robert C. Byrd The Senate's Role in Confirming Presidential Appointments
In devising our nation's constitutional system of checks and balances, the Framers specified that ambassadors, other public ministers and consuls, Supreme Court justices, and certain other officers of the U.S. would be appointed by the President "with the Advice and Consent of the Senate." Over the years, the Senate's power to confirm or reject presidential nominees has given it an important means of checking presidential power. One of the most famous examples took place on March 3, 1843, when the Senate, in a single late-night session, rejected President Tyler's nominee for Secretary of the Treasury, Caleb Cushing, three times. While the first vote had been 19 to 27, the second was only 10 in favor to 27 against. Demonstrating dwindling support, the Senate concluded the matter in a third vote on that same evening, rejecting Cushing by a vote of 2 to 29. In recent years, however, the executive branch has effectively undermined the Senate's "Advice and Consent" function by filling senior positions "temporarily" for months -- and sometimes years -- at a time. Presidents have been able to fill key positions with people who have not been considered, let alone approved, by the public's directly elected representatives in the Senate. This practice does not just shortchange the Senate, it also allows unelected members of the executive branch to escape the scrutiny of the American people. There is a law on the books, the Vacancies Act, that limits such temporary appointments to no more than 120 days unless a nomination is made. This law, however, has been routinely ignored in recent years. Of the 320 federal departmental positions requiring confirmation, 59, or 18 percent, have been vacant or filled by "acting" officials for over 120 days without a nomination being made, in violation of the Vacancies Act. Some positions have been filled by "acting" officials for more than two years without anyone being nominated to fill them. For these reasons, I recently introduced legislation that would strengthen the Vacancies Act. My bill would close the loophole through which federal agencies have avoided the 120- day time limit by mandating that the Vacancies Act supersedes all other provisions of law. Further, it would enforce the time limit by requiring that the pay for anyone temporarily occupying a position be cut off once the 120-day limit has expired. It is time for Congress to state, in no uncertain terms, that no administration will be permitted to circumvent the Vacancies Act, or any other Act designed to safeguard our constitutional duties. If this legislation is enacted, I think we shall have struck a blow not only for the Constitution, but also for the people's liberties. March 25, 1998