The President and Senate shall act in a timely manner on the President’s appointment of judges, ambassadors, and other public ministers or they shall not be paid.
The President shall nominate ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other federal courts established by Congress upon the advice and consent of the Senate within ninety days of any vacancy, and the Senate shall confirm or reject such nomination within one hundred twenty days thereafter, whereupon, if the nomination is consented to, the President shall appoint the person so nominated within thirty days. If the President or the Senate, as the case may be, do not timely act, the compensation otherwise payable to the President or members of the Senate and its staff shall be abated without recoupment until such action is taken.
The second paragraph of Article II § 2 of the Constitution gives the President the power to “nominate, and by and with the Advice and Consent of the Senate, ...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, and which shall be established by Law .…”
Both the President and the Senate manipulate this provision in the Constitution for political purposes. The President can allow vacancies on federal courts and elsewhere to remain pending a forthcoming election if he is concerned that the consent of the Senate will not be forthcoming. The Senate, on the other hand, pursuant to protocols among Senators, gives the Senator in whose State a particular person is to be appointed great influence as to whether that person is approved in committee or brought to the floor of the Senate for a vote. In addition, the Senate as a whole, if managed by a party different than that of the President, can delay appointments to achieve other political objectives.
As of 2008, when we last looked at this issue, 520 days elapsed on average for the Senate to deny consent to those federal district court judges nominated for appointment, an increase from 170 days in the late 1970s. Those persons who were favorably accepted increased to 182 days from approximately 70 days. These delays are outrageous because decent, honorable people who have committed to serve at the request of the President must put their life on hold pending action by the Senate. In the meantime, important posts remain vacant, and the public’s business is put at peril. On January 29, 2012, The New York Times in its lead editorial stated, “Filibustering Nominees Must End” and added:
Changing the rule is a risky course, but the only way to get the nation’s work done. The system for reviewing presidential appointments is broken. The Senate has a constitutional duty to provide advice and consent on the naming of judges and high-ranking executive branch officials. But the process has been hijacked by cynical partisanship and cheap tricks.
This is not a new problem, but it has gotten intolerably worse and is now threatening to paralyze government, as Republicans use the filibuster to try to kill off agencies they do not like. The number of unfilled judicial seats is nearing a historic high.
It is time to end the ability of a single senator, or group of senators, to block the confirmation process by threatening a filibuster, which can be overcome only by the vote of 60 senators…..
We believe a sanction of eliminating compensation to all Senators and the President if they fail to take timely action under the proposed amendment is a sufficient impetus to compel obedience to constitutional duty. Under the proposed Amendment, the President has ninety days from a vacancy to nominate a successor and the Senate has 120 days thereafter to consent. Upon consent, the President has thirty days to make an appointment.