The Purpose and Powers of the Senate, Part I: Context

    At few points in the history of the United States of America have the powers and significance of the United States Senate been a more fervent topic of conversation than is presently the case. Shifting demographics and increasingly polarized political rhetoric have conspired to produce an electoral environment in which a comfortable majority in the upper house of Congress no longer seems possible for either major party to achieve, one result of which has been a broad reassessment of how the Senate functions. The filibuster, for example, whose theoretical purpose is to prevent particularly controversial bills from being approved by all but a supermajority of Senators, has since become an almost insurmountable barrier to all but the most broadly appealing legislation. And though the Constitution has always granted the Vice-President the responsibility of casting a tie-breaking vote in the event of a deadlock, the frequency with which that prerogative has been used of late almost certainly falls well outside what Framers originally envisioned. And what of the Senate’s special responsibilities? Is it advisable for fifty-one of one hundred elected representatives to hold the power between them of appointing federal judges who hold officer for life? Or cabinet secretaries who possess tremendous influence over public policy? Should fifty-one people, quite possible representing far less than half the population of the United States, be able to ratify a treaty that holds the same power as federal law? Why, in short, does the Senate function the way that it does? And what was it, in retrospect, that the Framers were trying to achieve with its creation?  

    In attempting to answer some of these questions, the discussion that follows will necessarily be somewhat diffuse. Notes on the Debates in the Federal Convention (1787) by James Madison (1751-1836) will serve as a primary source in terms of the conversations which gave rise to the Senate in the first place, along with Notes of the Secret Debates of the Federal Convention (1787) by New York delegate Robert Yates (1738-1801). Some additional documentation from that same period would also seem to be of interest, not least among them being certain of the Federalist Papers. But some amount of time will also necessarily be spent exploring the origins of the basic concept of a legislative upper house, specifically within the 18^th-century Anglo-American tradition. The Framers, to be sure, did not set out with the intent of simply echoing the fundamental assumptions which surrounded and perpetuated the contemporary British House of Lords when they created the United States Senate in 1787. That being said, having all of them been raised and educated within a social context that placed a great deal of significance upon British parliamentary conventions, they could not help but have internalized some amount of reverence for the same. The fact that so many of the first constitutions adopted by the states described a bicameral legislature with a distinctly static, privileged, and powerful upper house would seem to speak to this exact turn of mind. Getting at the source of these ideas would accordingly seem essential if one is to reach an understanding of why the Framers made the Senate what we now know it to be. But first, for the sake of clarity, let us take a moment or two to establish exactly what the Senate is and what it does.

    The United States Senate serves as the upper house of the national legislature, the United States Congress, with one hundred members elected for infinitely renewable terms of six years each. These one hundred members are assigned two to every state and each member possesses one vote when it comes time to approve or reject legislation. The Senate has two presiding officers, one of whom is also the Vice-President of the United States. The other presiding officer, who oversees Senate sessions in the absence of the Vice-President, is called the president pro tempore (being Latin for “president for a time”) and is customarily the most senior member of the majority party. In terms of partisan offices, the person who functions as the practical administrator of the Senate – inasmuch as they control the day-to-day agenda – is the Majority Leader, while the Minority Leader serves as the chief representative of the minority party. Senate elections are held in a staggered fashion, with one third of the total membership standing for election every two years, and seats that become unexpectedly vacant are either filled on appointment by the governor of the relevant state or by way of a special election.

    In terms of the Senate’s particular functions, it possesses both legislative and executive responsibilities. Speaking to the latter, every bill that is approved by a majority vote of the House of Representatives must also be approved by a majority vote of the Senate if it is to become an Act of Congress. Under the terms of the Constitution, any type of bill may originate in the Senate so long as said bill does not propose to levy taxes. In addition, while the Senate is not formally restricted from “appropriating” – i.e., spending – monies that have already been raised, the leadership of the House has customarily insisted that this also lies outside the Senate’s remit. In consequence, while the Senate may vote upon legislation which proposes to spend federal funds – and has done so – the House invariably refuses to give such bills a hearing. A bill which is approved by the House and sent to the Senate or approved by the Senate and sent to the House may be ratified as is, amended and sent back, or result in the formation of a conference committee. Any Senator may speak during any debate for as long as they are able unless – with a few key exceptions – three-fifths of their colleagues vote to bring the debate to a close. But while this fact has, in the past, resulted in individual Senators attempting to hold the floor for hours at a time in order to frustrate the passage of a particular piece of legislation, what it tends to mean in modern practice is that most bills placed before the Senate require the support of sixty Senators for formal approval. The act of holding up a bill until a three-fifths vote is achieved – or merely of threatening to do so – is known as a “filibuster.”

    Beyond acting as a secondary debating chamber for the purpose of legislation, the Senate also possesses the exclusive responsibility to “advise and consent” – i.e., vote – upon a number of executive branch proposals. Treaties, for example, which the Constitution maintains shall have the same weight and significance as federal law, must be submitted by the President for Senate approval before they can come into force. The Senate must also approve the nomination of cabinet secretaries and under-secretaries, federal judges – up to and including Justices of the Supreme Court – the directors of various executive-branch organizations, and – in cooperation with the House – the Vice-President of the United States in the event that the office has become vacant. Historically speaking, the significance of the Senate’s appointment power has varied markedly depending on the political climate of the era and the nature of the relationship between that body and the President. Across the entire 19^th century, for example, the Senate formally voted to reject a Supreme Court nominee only seven times, two of which were the result of a persistent conflict between President Grover Cleveland (1837-1908) and the proponents of the Free Silver movement who controlled the New York wing of the Democratic Party. During this same span of time, the Senate voted to reject another seven cabinet nominees, fully five of whom were submitted by the notoriously unpopular John Tyler (1790-1862). In all other cases during this first century and a half of American history, the appointments in question were either approved or withdrawn.

    In terms of formal rejections, the 20^th century was even more quiescent. Between the years 1900 and 1999, only four Supreme Court nominees and four cabinet picks were actively denied by the Senate, and in both cases, the 1980s witnessed the last such occasion to date. But while this might appear to indicate the emergence of a smoother working relationship between successive presidents and Senate majorities than during previous eras in American history, a more than cursory examination tells a dramatically different story. But for the odd occasion – as noted above – wherein the relevant relationship was for some reason particularly strained, the Senate has historically tended to approve the nominations submitted by the executive branch by fairly comfortable margins. Even mutual suspicion has not always doomed a given nominee. In the 1930s and 1940s, for example, in spite of the ire which he aroused after threatening in 1937 to “pack the court” with more agreeable judges who would vote to sustain his various New Deal initiatives, President Franklin Delano Roosevelt (1882-1945) still managed to rack up sizeable margins of victory – 63-16 for Hugo Black (1886-1971), 62-4 for William O. Douglas (1898-1980) – for his chosen appointees. And in 1975, in the immediate aftermath of the Watergate Scandal (1972-1974) and the resignation of President Richard Nixon (1913-1994), Nixon’s former Vice-President Gerald Ford (1913-2006) succeeded in having John Paul Stevens (1920-2019) voted onto the Supreme Court by a margin of 98-0. But while this trend generally continued into the 1980s and 1990s – with Ronald Regan’s rejected nominee Robert Bork (1927-2012) being more than balanced out by the unanimous conformations of Antonin Scalia (1936-2016) and Anthony Kennedy (1936-) – the collegiality which used to characterize the appointments process thereafter began to fray.

    While, as aforementioned, the Senate has not voted to reject either a Supreme Court nominee or a cabinet nominee since the late 1980s, pre-emptive withdrawals have become far more common and the margins of successful votes have become far smaller on average. Of the three people that President George W. Bush (1946-) nominated to the Supreme Court of the United States, for instance, one, John Roberts (1955-), was confirmed by a vote of 78-22, another, Harriet Miers (1945-), was withdrawn, and the third, Samuel Alito (1950-), was confirmed by a vote of 58-42. Bush’s successor, Barack Obama (1961-), managed a broadly similar average, with two successful confirmations – Sonia Sotomayor (1954-), 68-31 and Elena Kagan (1960-), 63-37 – and a third – Merrick Garland (1952-) – which was effectively rejected without a vote. And while all three of the nominations made by President Donald Trump (1946-) were ultimately confirmed, the margins in all three cases amounted to ten votes or less. A comparable story has played out in terms of cabinet appointments as well. Before 1993, the Senate voted only eleven times to reject a cabinet nominee and three nominees were withdrawn before a vote could be held. Since that time, while a nominee has yet to be formally rejected, fully sixteen of them have been pre-emptively withdrawn. And of those that were approved, particularly in the last years of the 2010s, several only just managed to scrape by to confirmation. Whereas Hillary Clinton (1947-) and John Kerry (1943-) were each approved as Secretary of State by over ninety votes in their favor, Rex Tillerson (1952-) was appointed to the same office on a margin of 55-43 while Mike Pompeo succeeded him by a count of 57-42. Even granting the possibility that the Trump Administration represents some manner of historical aberration – at this point more of a hope than a certainty – the recent confirmation of Antony Blinken (1962-) by a vote of 78-22 would nevertheless seem to indicate that the era of wholly uncontroversial appointments might already have ended.

    Similar patterns seem to play out when one compares other cabinet nominations from the last three administrations. Treasury Secretary Jack Lew (1955-) was approved by a vote of 71-26, his successor Steve Mnuchin (1962-) by a margin of 53-47, and Mnuchin’s successor, Janet Yellen (1946-), by a count of 84-15. While this might not seem like a particularly alarming development, it bears nothing that nominees from either party to lead the Treasury Department prior to Lew were regularly confirmed by a unanimous vote. In terms of the office of Attorney General, an even more interesting comparison can be made. Upon being nominated for said office in 1991, William Barr (1950-) was approved unanimously, both by the Judiciary Committee and on the Senate floor. Barr was approved for a second term almost thirty years later when he was nominated again in 2019, but this time by a vote of 54-45. In the interim, some, like Barr’s immediate successor, Janet Reno (1938-2016), met with little resistance at all, but the general trend was definitely towards closer and closer margins. By the time of Barr’s second confirmation, his predecessors Lorretta Lynch (1959-) and Jeff Sessions (1946-) had each been confirmed by less than seventy votes, with Sessions succeeding to the office by a final tally of only 52-47.

    Evidently, as the 20^th century has given way to the 21^st, both cabinet confirmations and Supreme Court confirmations have become increasingly contentious affairs. And while in the days when unanimous approval was common there might not have been much enthusiasm on the part of the American public to question the nature of this particular prerogative of the Senate, the tensions that have accompanied more recent appointments has understandably brought with it a good deal of popular scrutiny. None of this is to say, of course, that partisan politics has never before seeped into and greatly influenced the confirmation processes of the Senate. As aforementioned, there have been numerous occasions in the past during which the relationship between either the President and the Senate or the President and some faction of his own party has been turbulent enough to interfere with cabinet or Supreme Court appointments. It’s just that for most of the last century this has not been the case, while for most of the last two decades it very much has. For better or worse, the United States would presently seem to be in the midst of another unusual but not unheard-of period in its increasingly lengthy history during which political deadlock and disagreement are more or less the norm. And while it has not always been the case that these periods have produced a great deal of philosophical introspection on the part of the American people – particularly on the subject of previously un-scrutinized norms – such a moment of self-examination would seem to be very much in the offing. The events of the last four years in particular have given rise to intensely probing discussions about the purpose of certain institutions and the manner by which their continued existence is justified. The Senate, as the implications of its role in confirming certain executive branch appointees have become clearer and clearer, is just such an institution. It accordingly bears asking – in keeping with the spirit of the times – how and why this institution came to be, how it has changed over the course of its existence, and what certain of its responsibilities were originally intended to signify.