Confirming A Partial Senate Picture

Larry Price
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Wednesday - March 28, 2007
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One of the most interesting and least understood things going on at the Legislature is the Senate confirmation procedure.

If you watched any of the confirmation process on television or read a journalist’s version of what happened, you probably don’t really know what the senators are up to. On the surface, it looks like the senators are humiliating the gubernatorial appointees. That is not to say the process of confirmation is not humiliating, it is, but that’s because they expect the candidate to rise to the occasion or throw in the towel.

The confirmation process is the “advise and consent” ingredient in the much-revered concept of separation of the executive, legislative and judicial branches of government. The committees grill the candidates so they can advise the rest of the senators, who then decide if the Senate should approve the governor’s appointees.

One of the most controversial aspects of the advise part of the confirmation process is what happens when individuals are subpoenaed to testify against a gubernatorial nominee. The exact reason for testimony to be subpoenaed is the fear of retaliation. Senate rules require that the committee handling the confirmation process must have a quorum present to hear the subpoenaed. What usually happens is the subpoenaed individuals are the first to testify, and when they are through with their negative testimony, a quorum is no longer needed and committee members who have other duties to tend to can be excused from the proceedings and listen or watch the rest of the proceedings in their office.

But that’s not what it looks like to reporters and people in the office. The impression is that only the chairperson of the committee hears all the testimony and the members who are excused only hear the negative testimony. The truth is the people charged with covering the confirmation process leave after the panel diminishes to one, and unfortunately report only the negative testimony.

It’s interesting to note that the confirmation process is one of the most daunting tasks facing the Senate leadership. The reason is simple. The record shows that in our little state there are more than 600 people appointed by the governor at any one time, and they must all go through the confirmation process, like it or not. When you consider the hearings can go on for six hours at a time and last more than two or three days, it is almost as tough on the senators as it is on the appointees.

There is no question that the struggle between the Executive and Legislative branches goes on from beginning to end. Over the years the record will show that from as far back as 1982, during Dante Carpenter’s tenure as chairman of the Judiciary, negative testimony has been solicited by the Legislature. It is a way of purifying their consent and protecting themselves down the road.

The confirmation process faces a dilemma, however, because many people who could be talked into public service shy away because of the public humiliation during the confirmation. Of course, media scrutiny, especially the presence of television cameras during the confirmation process, alters the testimony and antics of members of the committee. It introduces acting into the process.

The message here is that the confirmation process is not going to change in the near future. It’s the same debate many in the legal profession have about cameras in the courtroom. The cameras are only interested in focusing on the juicy cases, because most cases are dull and unwatchable.

The same is true with confirmation procedures. It might be a good idea for taxpayers who are interested in watching a confirmation process to do so up close, in person, because it is the only way to get an accurate picture of what’s going on. Of course, the lawmakers could pass a law that all reporters must stay the entire course of the hearing before submitting their columns.

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