Pros and cons of the Advice and Consent

Artículo publicado previamente en We Learn Today

The US Constitution provides that “the Senate advise and consent on key executive and judicial appointments and on the ratification of treaties” (Article II, Sec. 2, cl. 2).

What’s the advice and consent?

In the US is a power of the United States Senate to be consulted on and approve treaties signed and appointments made by the President of the United States to public positions, including Cabinet secretaries, federal judges, and ambassadors.

The question is, could this system be exported to other countries and political systems?

As a Spaniard, I am going to talk about the case of Spain. The Spanish Constitution does not cover this function for the Parliament, neither for the Senate, as we can see in Section 66.2: “The Cortes Generales exercise the legislative power of the State and adopt its Budget, control the action of the Government and have the other powers assigned by the Constitution.”

Should we export the advice and consent? Is it a good system? It could be said that this power of the US Senate could help to build a fairer democracy, since the public appointments are made not only by the Government but also by all the citizens’ representatives, but the big problem is (and this is my raison to be against), as Hamilton states on The Federalist Papers:

Hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be madde under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a comrpomise between the parties. In either case, the intrinsic merit of the candidate will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: “Give us the man we wish for this office and you shall have the one you wish for that.” This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations (Federalist No. 76, the Appointing Power of the Executive from the New York Packet, Tuesday, April 1, 1788).

Otto Preminger, on his film “Advise and Consent” (based on the Pulitzer Prize-winning novel of the same name by Allen Drury), tried to show what Hamilton was talking about on The Federalist Papers.

This system was incorporated into the French Constitution in July 2008 through modification of article 13 which provides that from now on parliamentary commissions may oppose presidential nominations:

“(…) Le Président de la République ne peut procéder à une nomination lorsque l’addition des votes négatifs dans chaque commission représente au moins trois cinquièmes des suffrages exprimés au sein des deux commissions. La loi détermine les commissions permanentes compétentes selon les emplois ou fonctions concernés”.

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About Francisco José Hidalgo-Barquero

Asesor de Fusiones y Adquisiciones. Consultor de Negocio.
This entry was posted in Derecho, English posts, Política and tagged , . Bookmark the permalink.

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