The shenanigans that we have seen regarding a successor for Justice Scalia before his body is even cold is the just the latest evidence that the constitutional advice and consent process is broken. While in at least one instance the Constitution provides for the President not doing his job (laws either get enacted without his signature or get “pocket vetoed” depending on timing), no provision was made for the Senate not doing theirs with regard to presidential nominations and appointments. The Constitution did not envision quirky Senate rules like filibusters and holds, nor did it foresee modern transportation conveniences allowing for the Senate to hold virtually year-round pro-forma sessions which make a mockery of the recess appointment provision. Therefore, I would like to propose the following amendment which puts the onus on the Senate to actually act if it really objects to an appointment:
SECTION I: When a vacancy occurs in any office of trust or profit under the United States within the executive branch or an agency, for which this Constitution or other legislation requires the nomination of the President with the advice and consent of the Senate, the President shall transmit in writing the name of the chosen candidate to the President Pro Tempore of the Senate along with a statement of reasons and qualifications for said candidate. The Senate shall, within thirty calendar days of receipt of said communication by the President Pro Tempore, vote in full session on whether or not to approve the choice, a simple majority of the entire membership being required for confirmation. Failure to take such a vote will result in the candidate being installed in an acting capacity for one year during which time the Senate may still act and a negative vote shall result in the removal of that candidate. If no action is taken within the year, the candidate shall be considered permanently installed and shall serve as the law provides for that position.
SECTION II: When a vacancy occurs on the Supreme Court of the United States or any inferior court which Congress may from time to time establish, the President shall transmit in writing the name of the chosen candidate to the President Pro Tempore of the Senate along with a statement of reasons and qualifications for said candidate. The Senate shall, within ninety calendar days of receipt of said communication by the President Pro Tempore, vote in full session on whether or not to approve the choice, a simple majority of the entire membership being required for confirmation. Failure to take such a vote will result in the candidate being installed in an acting capacity for one year during which time the Senate may still act and a negative vote shall result in the removal of that candidate. If no action is taken within the year, the candidate shall be considered permanently installed and shall serve during good behavior.
SECTION III: If the Senate votes affirmatively to confirm the candidate at any time, that candidate shall be considered installed permanently and immediately and serve for a term as the law provides for that position. This amendment shall not be construed to prohibit the President from withdrawing a nomination prior to Senate action or the automatic permanent installment of the candidate.
Ask Rubio, Cruz, et al to pledge that, if elected, they will make no appointments during 2019?
I get the political theatrics value, but President Cruz or Rubio (perish the thought!) could and should make appointments in 2019 if the opportunity arises.