I really don’t agree with it – but I do believe he is on solid Constitutional ground. Paul’s vote indicates two possibilities – either he is playing by the rules set forth that the Democrats will not recognize or he actually believes that Hagel can do the job.
In 2002, when the Democrats were unjustifiably blocking President Bush’s appointees, John C. Eastman (writing at the Claremont Institute) noted the problem:
In June of 2001, President Clinton’s White House Counsel, Lloyd Cutler, told the Senate Judiciary Committee that “it would be a tragic development if ideology became an increasingly important consideration in the future. To make ideology an issue in the confirmation process is to suggest that the legal process is and should be a political one. That is not only wrong as a matter of political science; it also serves to weaken public confidence in the courts.”73
Today the Senate is doing precisely what one delegate to the North Carolina ratification convention warned against: it is taking over the nomination power which the Constitution vested in the President alone. “[T]he President may nominate, but they have a negative upon his nomination, till he has exhausted the number of those he wishes to be appointed: He will be obliged finally to acquiesce in the appointment of those which the Senate shall nominate, or else no appointment will take place.”74 The dangers posed by such a system are as real today as they were to the founding generation. It is time to rid ourselves of all ideological litmus tests save one: “Mr. Nominee, are you prepared to honor your oath to support the Constitution as written and not as you would like it to be, if we confirm you to this important office?” Any nominee who answers that question in the negative deserves to be rejected. Unfortunately, the Senate is today refusing a hearing to several nominees precisely because the current leadership knows that those nominees would honestly answer that question in the affirmative.
He noted that the Senate has a very limited Constitutional role where presidential appointees are concerned:
Of course, there is more to the appointment power than the power to nominate, and the Senate unquestionably has a role to play in the confirmation phase of the appointment process. But the role envisioned by the framers was as a check on improper appointments by the President, one that would not undermine the President’s ultimate responsibility for the appointments he made. As James Iredell — later a Justice of the Supreme Court himself — noted during the North Carolina Ratification Convention, “[a]s to offices, the Senate has no other influence but a restraint on improper appointments…. This, in effect, is but a restriction on the President.”
The degree to which the founders viewed the power of appointment as being vested solely in the President can be gauged by the fact that John Adams objected even to the Senate’s limited confirmation role, contending that it “lessens the responsibility of the president.” To Adams, the President should be solely responsible for his choices, and should alone pay the price for choosing unfit nominees. Under the current system, Adams complained, “Who can censure [the President] without censuring the senate…?”28 The appointment power is, Adams wrote, an “executive matter,” which should be left entirely to “the management of the executive.”29 James Wilson echoed this view: “The person who nominates or makes appointments to offices, should be known. His own office, his own character, his own fortune, should be responsible. He should be alike unfettered and unsheltered by counsellors.”
In discussing the analogous situation of executive appointments — such as ambassadors or cabinet members — James Madison asked, “Why…was the senate joined with the president in appointing to office…? I answer, merely for the sake of advising, being supposed, from their nature, better acquainted with the characters of the candidates than an individual; yet even here, the president is held to the responsibility he nominates, and with their consent appoints; no person can be forced upon him as an assistant by any other branch of government.”
The Senate’s confirmation power therefore acts only as a relatively minor check on the President’s authority — it exists only to prevent the President from selecting a nominee who “does not possess due qualifications for office.” Essentially, it exists to prevent the President from being swayed by nepotism or mere political opportunism. Assessing a candidate’s “qualifications for office” did not give the Senate grounds for imposing an ideological litmus on the President’s nominees, at least where the questioned ideology did not prevent a judge from fulfilling his oath of office.
This last paragraph is where I disagree with Rand – if he truly believes that Hagel “does not possess due qualifications for office”, then it is his Constitutional duty to vote against it…and Eastman goes on to note that the Democrats don’t follow these rules:
Despite the original understanding of the Senate’s limited role in the confirmation process, and despite the lessons learned from these early historical flirtations with the use of political ideology as a criteria for judicial qualification, the Senate today appears bent on using its limited confirmation power to impose ideological litmus on presidential nominees and even to force the President to nominate judges preferred by individual Senators, thus arrogating to itself the nomination as well as the confirmation power.
The Senate’s expanded use of its confirmation power should perhaps come as no surprise. As a result of the growing role of the judiciary — and of government in general — in the lives of Americans today, the Senate’s part in the nomination process has become a powerful political tool, and, like all powerful political tools, it is the subject of a strenuous competition among interest groups every time the President seeks to fill a judicial vacancy. Moreover, it is a tool that poses grave dangers to our constitutional system of government. In its current manifestation, the Senate’s ideological use of the confirmation power threatens the separation of powers by undermining the responsibility for appointments given to the President, by demanding of judicial nominees a commitment to a role not appropriate to the courts, and, perhaps most importantly, by threatening the independence of the judiciary.
This really gets us back to the question of what to do when one party does not play by the rules.