|Why the Filibuster is Right for Hagel|
By Quin Hillyer
Thursday, February 21 2013
Because Nebraska’s former U.S. Senator Chuck Hagel is manifestly ill-qualified (or worse) to be Defense Secretary, and because due diligence about his record has not been completed, senators are more than justified in continuing to filibuster his nomination.
There are two parts to this argument – the first being Hagel’s unfitness for the job, the second being the appropriateness of the filibuster. The first is easier to demonstrate, and well-covered in numerous other places. The second is more complicated. So let’s dispense rather quickly with his unfitness.
Hagel is unqualified because, as his pathetic nomination-hearing performance indicated, he doesn’t even know much about the Pentagon or about defense policy. He’s ill-suited to the post because, even now, he won’t admit that the “Surge” in Iraq succeeded – which shows him immune to empirical evidence, completely apart from what one thinks about the original decision to overthrow Saddam Hussein.
He’s unqualified because he repeatedly has cast his own country in an unflattering light with regard to its very intentions in the Middle East. And he’s unqualified because of his history of seemingly knee-jerk antipathy to Israel and perhaps Jews as a whole, combined with softness toward Iran and/or groups associated with terrorism.
(On the “unflattering light” thing, by the way, the takeaway is not that Hagel is in the slightest way unpatriotic, but rather that he is surpassingly undiplomatic in a way contrary to U.S. interests.)
If Hagel’s shortcomings are so obvious, but enough Democrats seem cowed (for now) by the White House into voting for him anyway, the question becomes whether, and for how long, a filibuster against his nomination is appropriate. The first problem is that Republican senators seem entirely confused about the parliamentary tactic itself. Not only can they not agree as a group, but some individuals can’t seem to decide even in their own minds when and for what purpose a filibuster is warranted.
Perhaps they should consider a filibuster in its historical context, which originally was, honestly, to extend debate in order to have more time to persuade the public and other senators of one’s case. In extreme circumstances, of course, the ceaseless delay became, in effect, an outright blockage of legislation or nominees – but the legislative death-by-filibuster approach, rather than the “serve the cause of honest debate” approach, was rare enough that its use signaled a matter of particularly high importance, rather than a run-of-the-mill issue or action.
It would thus be more appropriate, not less, to use death-by-filibuster on the nomination of a Defense Secretary than on the nomination of, say, a U.S. Attorney. And it certainly would be appropriate to put a series of delays on such a nomination if it were reasonably thought that more relevant information was or should be forthcoming, or if it were reasonably thought that public opinion could be significantly altered – and especially if a sincere attempt were made in the meantime, via public debate on the Senate floor, to change fellow senators’ minds.
Finally of note, there are reasons within the internal logic of the Constitution (if not its outright letter) that make a filibuster of a Cabinet nominee more appropriate than a lengthy filibuster of a judicial nominee – and that make a filibuster specifically of the nominee for the Pentagon the single most appropriate of all potential blocking actions against officials requiring presidential appointment with the “advice and consent” of the Senate.
A much longer treatise would best explain all this, but the short version is as follows:
The Constitution requires a judiciary, and provides it an entire “Article” setting out its powers. The judiciary, after appointment, is explicitly designed to be free of direct political influence, and the legislative branch has no direct oversight over its workings, other than to provide its financing and to remove judges for extreme malfeasance. For a minority of one half (the Senate) of one branch (Congress) to hold hostage an entire, separate, apolitical branch, via filibuster, is a grave matter indeed.
On the other hand, no executive agencies are explicitly mentioned in the Constitution. Every department, including defense, exists only via the creation of Congress; the departments are overseen by Congress, and answerable to Congress. They are part of the “political branches” of government. As such, their officers should be more dependent, for appointment, on the normal political processes – including the filibuster when serious questions are raised – than are judicial nominees, who cannot be fired by the president and thus are theoretically less likely than Cabinet members to aid an imperial president in what Madison would have called “factious” behavior.
Furthermore, there is one particular power the Founders gave Congress to check a president’s otherwise vast authority as Commander-in-Chief. That power is the power to declare war. As it is the Defense Secretary who, under the president’s direction, will oversee whatever wars Congress declares, it is all the more important for a supermajority of the Senate to feel confident in that official’s abilities – and all the more congruent with the internal logic of the Constitution for the Defense post to be the one where the Senate’s “consent” authority is most carefully executed.
In Federalist 76, in discussing why the Senate might block a nominee, Alexander Hamilton specifically listed among the requisite “special and strong reasons for the refusal” the possibility of nominees “possessing the necessary insignificance and pliancy to render them the obsequious instruments of [the president’s] pleasure.” Surely Chuck Hagel’s disastrously ill-informed performance at his confirmation hearing showed that he may fit that unfortunate bill.
With each new day bringing a new revelation embarrassing to Hagel, and with new reports repeatedly showing evidence that relevant information is being deliberately withheld, senators have every right to reject cloture and insist on fuller pre-cloture debate, on the Senate floor, about Hagel’s demerits. Such debate would demand attention from a public already turning against Hagel, and force each senator to own up to his responsibility to consent only to nominees truly fit for office – and if the Senate, on rare occasions, forbids the president from an unwise selection, then in Hamilton’s words (Federalist 77) “the restraint would be salutary.”
At least another full week of a real, live filibuster would provide an honorable and, yes, salutary service to a public desperate for honest debate in the open air, rather than the closed-door negotiations now so annoyingly familiar. This is not about politics; it’s about avoiding a catastrophic mistake at a time when a beleaguered Pentagon can ill afford one.
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