I have written quite a bit about the months-long blocking of senior Defense Department promotions and assignments being imposed by Senator Tommy Tuberville’s opposition to the Secretary of Defense’s order providing leave and travel reimbursement to service members and their families traveling out of the state to which they are assigned to obtain abortions. But a sidebar discussion in the comments section in yesterday’s post about Admiral Lisa Franchetti becoming the first woman to head a military service reminded me that I have not questioned the underlying practice that got us here.
@JKB contends that Tuberville is merely “holding firm that the legislative branch should do its constitutional duty to advise and confirm rather than rubber stamp the unelected career bureaucrats.” While I don’t think that’s at all what is happening here, there’s a kernel of truth here.
Article II, Section 2 of the Constitution provides that 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, whose Appointments are not herein otherwise provided for.” The problem, as illustrated by this standoff, is that there are far more “officers of the United States” in the modern era than anyone sitting in Constitution Hall in the summer of 1787 could have possibly imagined. Thus, as with so many other aspects of our Constitutional system, we honor the process mostly in the breach.
A February Congressional Research Service report, “Senate Consideration of Presidential Nominations: Committee and Floor Procedure,” summarizes the situation nicely:
Senate confirmation is required for several categories of government officials. Military
appointments and promotions make up the majority of nominations, approximately 65,000 per two-year Congress, and most are confirmed routinely. Each Congress, the Senate also considers approximately 2,000 civilian nominations, and, again, many of them, such as appointments to or promotions in the Foreign Service, are routine. Civilian nominations considered by the Senate also include federal judges and specified officers in executive departments, independent agencies, and regulatory boards and commissions.Many presidential appointees are confirmed routinely by the Senate. With tens of thousands of nominations each Congress, the Senate cannot possibly consider them all in detail. A regularized process facilitates quick action on thousands of government positions. The Senate may approve en bloc hundreds of nominations at a time, especially military appointments and promotions. The process also allows for close scrutiny of candidates when necessary. Each year, a few hundred nominees to high-level positions are regularly subject to Senate investigations and public hearings. Most of these are approved, and a small number of nominations are disputed and receive more attention from the media and Congress. Judicial nominations, particularly Supreme Court appointees, are generally subject to greater scrutiny than nominations to executive posts, partly because judges may serve for life. Among the executive branch positions, nominees for policymaking positions are more likely to be examined closely, and are slightly less likely to be confirmed, than nominees for nonpolicy positions.
There are several reasons that the Senate confirms a high percentage of nominations. Most nominations and promotions are not to policymaking positions and are of less interest to the Senate. In addition, some sentiment exists in the Senate that the selection of persons to fill executive branch positions is largely a presidential prerogative. Historically, the President has been granted wide latitude in the selection of his Cabinet and other high-ranking executive branch officials. [all emphases mine; footnote indicators redacted]
As a practical matter, this makes sense: Supreme Court Justices and cabinet secretaries quite reasonably get more scrutiny from the Senate than those being promoted from first lieutenant to captain in the Space Force. Indeed, even at the presidential appointee level, Deputy Assistant Secretaries of Defense (who are two-star equivalents for protocol purposes) don’t face individual Senate confirmation; that’s reserved for Assistant Secretaries (three-star) and above.
Which begs the question: Why is the Senate pretending to confirm one- and two-star generals and admirals at all? While I reject JKB’s assertion that the en banc procedure is being done out of “laziness,” the reason Tuberville’s hold is effective is precisely because the Senate simply doesn’t have the bandwidth to hold floor votes on 65,000 nominees every two-year cycle.
So, why not—as it does with so many of its other Constitutional responsibilities—simply delegate all military promotions and assignments below the 3-star level to the President via the Secretary of Defense? The Senate would retain every ounce of its Constitutional power and would still retain oversight, holding up the promotion or appointment of any individual officer it wished by exception. That’s effectively what it does now but, by pretending to be advising and consenting on matters where it lacks the ability to actually do so, they have created an unnecessary bottleneck.
