The Washington Times

There really is no excuse for the Senate’s unwillingness to schedule a floor vote on the confirmation of Eugene Scalia as solicitor in the Labor Department. Everyone agrees he is a highly capable lawyer. Therefore, one looks to the partisan politics of the matter to explain the delay. But one should not stop by looking there. These confirmation fights are also an indication of an ongoing struggle for power between the executive and legislative branches of the government.

The partisan politics in the case of Mr. Scalia (who’s an acquaintance of mine, I should say) are as conspicuous as his last name. His father is the brilliant Supreme Court justice, who has long been a hero to the right for his principled “originalist” approach to the interpretation of the Constitution. In itself, that would make Justice Scalia a villain to the left. That he was a leading light of the court majority that shut down Al Gore’s recount effort in Florida last year makes him all the more suitable for casting as the villain in fund-raising materials and other agitprop.

Washington’s is certainly a political culture in which the sins of fathers are visited upon children. It’s the flip side of dynastic politics. All the better, then, if an opportunity presents itself to use the son to get back at dad. In this respect, the resonance of “Stop Scalia” must have been irresistible. Were there a brilliant young lawyer among the scions of the Kennedy clan and were such a one brought forth as the nominee for an analogous position in a Democratic administration, GOP activists would relish an opportunity to kick up a fuss, notwithstanding that it’s a subcabinet appointment in a second-tier Cabinet department.

I expect that Mr. Scalia will indeed be confirmed – at the point at which his utility as a political hostage is outweighed by the political expense of keeping him in captivity. In Washington this, too, is a more complex calculation than it appears. It’s not just pressure from the Bush administration (which is stepping up) that Senate Majority Leader Tom Daschle must contend with. There’s also the countervailing pressure from the true-believer types among Democrats who have convinced themselves that the solicitor’s job at the Labor Department is indeed one of the most important positions in official Washington and that Mr. Scalia must be stopped because of his dangerous views on ergonomics. Meanwhile, I would also add that Gene Scalia, hitherto little-known outside of the legal circles in which he practiced, is now a household name among activist Republicans – who, thanks to the Daschle captivity, now probably view him as the logical successor to his father on the Supreme Court and can be counted on to rally for his every subsequent career move.

There comes a point, though, at which the cumulative effect of the partisan appointment-blocking process takes on a broader meaning. It’s not just a question of a Democratic Senate majority seeking to inflict political damage on a Republican White House (or vice versa, during most of the Clinton years). It’s a case of Congress as such seeking to impose itself on the White House as such – in short, an ongoing struggle for supremacy between the two branches.

Note that confirmation politics is a game played not solely between members of opposing parties. Individual senators often use the authority they possess under Senate rules to put a “hold” on nominees until the senator’s concerns are attended to, concerns that often have little to do with the nominee in question. And this activity is hardly confined to partisan disputes.

Congressional oversight in the form of extensive and often duplicative committee hearings requiring testimony from senior administration officials (and the elaborate staff preparation necessary to anticipate and prepare answers for lawmakers) is another element in this institutional struggle. So, too, are certain legislative enactments seeking to curtail executive authority. The late, unlamented independent counsel act was one such statute; billed as a good-government initiative, it had the effect of depriving the executive of control of one of its core functions, the prosecution of crime. The War Powers Resolution, seeking to limit the ability of the president to put troops in harm’s way without congressional authorization, is another, and one that successive Democratic and Republican administrations have deemed an unconstitutional impingement on the president’s powers as commander in chief.

This ongoing institutional struggle has its ups and downs. A century and a quarter ago, Congress was supreme. Under the Tenure of Office Act, subsequently found unconstitutional, presidents couldn’t even remove their own appointees until the Senate confirmed a successor. Modern presidential authority is in no such peril – but it is increasingly hamstrung over personnel. Had the war against terror not intervened, the Bush administration might have been seriously weakened by now.