The Volokh Conspiracy - Dellinger Says Exec Nominations Deserve Vote:

Former Clinton Justice Department official Walter Dellinger had an op-ed in yesterday's WSJ arguing that all Executive Branch nominations deserve an up-or-down vote in the Senate.

Whether Republicans or Democrats are in office, the loyal opposition should not frustrate a president's ability to execute the powers of his office by denying an up-or-down vote to executive-branch nominees.

He made a similar argument in 2001 when he sought (somewhat unsuccessfully) to discourage Senate Democrats from blocking Bush nominees. As he wrote then and now: "If a president cannot promptly place his chosen people in key offices, he can hardly be held fully responsible for the missteps of the administration." I agree. While I may disagree with Dawn Johnsen or Harold Koh on various matters, I believe each should receive a prompt vote following a fair examination of their respective records -- and that each should be confirmed.

While Dellinger focuses on the fact that many Senate Republicans are on record opposing filibusters or other obstruction of executive branch nominees, he also notes that Senate Democrats blocked votes on several Bush nominees to the executive branch, including John Bolton, Otto Reich, and Eugene Scalia. The one qualification I would make to Dellinger's argument is that he seems to suggest that the only principled position for Republican Senators to take is one of unilateral disarmament. While I agree that tit-for-tat has produced unnecessary escalation in nomination battles -- for both executive and judicial nominations -- I also suspect that, as a practical matter, Senate Democrats are unlikely to forswear resort to their prior tactics absent some threat of retaliation. Just as it took several intrusive investigations of the Clinton Administration to sour Democrats on the independent counsel law, I fear it may take the threat of GOP obstruction to convince Democrats to accept a new norm on the treatment of Presidential nominees to the executive branch. I don't want either party to filibuster executive branch nominees, but I understand why one party would be reluctant to forswear this option unless the other would do the same.

	[Jonathan Adler, April 21, 2009 at 10:15am] Trackbacks Dellinger Says Exec Nominations Deserve Vote: Former Clinton Justice Department official Walter Dellinger had an op-ed in yesterday's WSJ arguing that all Executive Branch nominations deserve an up-or-down vote in the Senate. Whether Republicans or Democrats are in office, the loyal opposition should not frustrate a president's ability to execute the powers of his office by denying an up-or-down vote to executive-branch nominees. He made a similar argument in 2001 when he sought (somewhat unsuccessfully) to discourage Senate Democrats from blocking Bush nominees. As he wrote then and now: "If a president cannot promptly place his chosen people in key offices, he can hardly be held fully responsible for the missteps of the administration." I agree. While I may disagree with Dawn Johnsen or Harold Koh on various matters, I believe each should receive a prompt vote following a fair examination of their respective records -- and that each should be confirmed. While Dellinger focuses on the fact that many Senate Republicans are on record opposing filibusters or other obstruction of executive branch nominees, he also notes that Senate Democrats blocked votes on several Bush nominees to the executive branch, including John Bolton, Otto Reich, and Eugene Scalia. The one qualification I would make to Dellinger's argument is that he seems to suggest that the only principled position for Republican Senators to take is one of unilateral disarmament. While I agree that tit-for-tat has produced unnecessary escalation in nomination battles -- for both executive and judicial nominations -- I also suspect that, as a practical matter, Senate Democrats are unlikely to forswear resort to their prior tactics absent some threat of retaliation. Just as it took several intrusive investigations of the Clinton Administration to sour Democrats on the independent counsel law, I fear it may take the threat of GOP obstruction to convince Democrats to accept a new norm on the treatment of Presidential nominees to the executive branch. I don't want either party to filibuster executive branch nominees, but I understand why one party would be reluctant to forswear this option unless the other would do the same.