I Understand Rand Paul’s Vote For Hagel…But I Don’t Agree With It

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.

33 thoughts on “I Understand Rand Paul’s Vote For Hagel…But I Don’t Agree With It

  1. Squatch,

    Did you hear Rand on Beck’s show? He knew he was going to be on the show since yesterday, so there is no “I misspoke” here. Rand said he didn’t want to vote against ANY nominee because he doesn’t ever want the Democrats doing it to a Republican President’s nominee. That is not a principled decision based on his understanding of the Constitution: that is a political decision based on Party loyalty. Now, how do we “understand” that — unless, as you point out, Rand believes Hegel is “qualified.”

    Now, if Rand believes Hegel is qualified, then I am back to “Scratch Rand Paul from my list of Good Guys.”

    • Again, I would have voted against Hagel – not because of ideology but because I have always thought he was a dumbass. I can’t understand how anyone could watch his performance at the hearings think otherwise.

      Somebody offered Paul some kind of deal on something. Only 4 Republicans voted for him and Paul was one of the 4? Maybe he saw that it was an unstoppable deal and he voted the way he did as some sort of “conscience” vote to preserve the Constitutional process…I don’t know.

          • “Are we talking about allowing the Israelis to set our foreign policy?”

            I think you should be more worried about the liberals attempting to allow the United Nations to set our gun control policies, and policing our voting booths.

            But no, you are more concentrated upon flippant spelling corrections.

              • Look elsewhere. Your savior is not Rand Paul. You need someone who will stick to his guns, and not offer up silly excuses.

                An honest man asks for permission, not begs for it after the deed is done.

              • No, it didn’t. I know a f**king diversion when I see one. You spun the topic to include the man responsible for the Marxist principles of Western Europe ….

                If that was your attempt a humor, you need to practice a bit more. It came off as a underhanded sucker punch directed at Joe.

              • Steve,

                First, as a Christian, aren’t you the least bit hesitant to be on the wrong side of supporting Israel?

                OK, if you follow the man, Hegel/Hagal (whatever) has a history of hostility toward Israel and deference toward Iran, Palestine and Syria. These nations are not only enemies of our ally, they have openly declared themselves to be enemies of the U.S. This opens the door to one of my biggest criticisms of Ron Paul. If you cannot even recognize the threat, then how can you defend the nation from it? Worse, if you embrace an enemy with open arms, then how can you NOT accept guilt for treason?

                But it might be simpler to just ask whether or not you would put the cookie monster in charge of a “biscuit” jar? Sure, he might not be the “biscuit” monster, but do you think he’ll see the difference? (i.e. English biscuits, that is)

                • How long have the Jews and Arabs been exchanging blows tit for tat? I’m not saying we don’t have Israel’s back, but our unconditional support is getting us, or them, nowhere. IMO, there needs to be a reality check and a push for a true two-state solution.

                  I would also add that, again IMO, U.S. soldiers should not be used as mercenaries in support of continuing the dominance of the oil industry. Every civilian killed by a drone likely adds 10, or 100 new enemies of the U.S.

                  • A “two-State” solution is stabbing the Jews in the back by siding with their enemies and ours.

                    Steve, seriously, and kindly, learn the REAL history of the region — the modern history. The land that was given to the Palestinians, a people who have NEVER had a nation in all of history, was stolen from them by the Arabs — not Israel. I believe there is an excellent whiteboard clip explaining this on YouTube. See if you can find it.

                • I may have to do a little research, but correct me if I’m wrong. Wasn’t the state of Israel set up by a U.N. mandate following WWII to return a homeland to the Jews? Since that time have the original borders not been extended as the result of war?

                  • Steve,

                    OK, so that you don’t think I am trying to lead you, please, research this. I think you will find there were 2 nations provided for in that same charter, but Palestine’s land was taken by its Arab neighbors and, since then, they have been trying to take ISRAEL’s land.

                    And even if this were not the case, if you start a war and lose your land, that has always been the way the world works. It is supposed to be a natural restraint on aggression — isn’t it?

                • After viewing the video I must admit the manifest destiny metaphor was not appropriate. However, I don’t really have an anti-Israeli bias beyond the U.S. having taken over the role of peacekeeper.

                  As the video describes, the conflict has been going on for a long, long time, and the continuous abusive rhetoric and violence directed at the Jews is inflammatory when a real peace process requires conciliation. So, I am okay with placing the blame on the Palestinians. But that leaves us with the same dilemma. Accepting the status quo wil lead to a showdown with Iran.

                  There are other theories floating around as to why this will eventually take place, but if it is to be avoided, I believe the U.S. position must pressure Israel make some concessions. The video ends stating the last overture for a settlement was presented to the Palestinians and they have been unresponsive. At this point, as I am not up to speed on all the players and details, I would have to concede that also.

                  • Steve,

                    I agree. And since PRINCIPLES are universal, how much of California and Texas are we giving to Mexico, and will that keep the peace on the border after we hand it over?

                    (PLEASE tell me you see my point 😉 )

  2. “Somebody offered Paul some kind of deal on something.” sasquatchtheyeti – AGREED.

    “I have come to think Rand Paul is another Stealth Progressive…..who makes himself feel above the Fray by calling himself a Libertarian and at Times a Conservative. He used the Tea Party momentum to get himself elected as such . . .” donameche – AGREED.

  3. I think Rand Paul is too worried about positioning himself as a presidential candidate. I also think his explanation for why he voted yes was bogus, not only in his reasoning, but also what truly motivated him.

  4. If you crap it you own it. Sorry for the vulgarity but no other wray to say it. If the President wants an incompetent Jew hater and Arab sympathizer that is immorally unfit for SECDEF and a coward, liar, un American Purple Heart usurper for Sec. Of State let him have his way. The rest of his cabinet is just as bad so what’s new. We as a nation have fallen to new lows.

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