February 19, 2013

Sunday, on ABC’s “This Week,” there was an interesting debate during the roundtable on the deference owed to a president on his Cabinet picks.

Newt Gingrich
Newt Gingrich (Evan Vucci / AP)

George Will made the case that “most sensible Republicans believe that a president is owed vast deference in picking his Cabinet because the Cabinet leaves when he leaves and the Cabinet exists to implement his policies. Neither is true of judicial appointments, for example.” he concluded, “Now, Chuck Hagel took that principle and made it really hard to subscribe to with this appalling performance in his hearing. Nevertheless, if the president wants a terrible Secretary of Defense, he’s got a right to him.”

In rebuttal, Newt Gingrich argued:

Well, there’s a secondary part of this, which I think George would subscribe to. The Constitution divides power. This is one of the first occasions where you see the Republicans in the Senate get together and say, you know, we want to remind the executive branch that you have to have some deference to us.

I mean, Lindsey Graham’s point is, tell us the rest of the Benghazi story. Other folks would like to know more about where did Hagel’s money come from.

I don’t find it unseemly to say to a potential Secretary of Defense or Secretary of Treasury, tell me what you’ve been doing, where your money has come from while you’ve been out of public office.

Gingrich, on this occasion, has the better of the argument but perhaps does not go far enough.

As a preliminary matter, the Constitution does not give the president the sole power of appointment; Congress must give its advice and consent. Unless this is all for show, hearings and confirmation votes have to mean something; in order to mean something, the potential for rejecting unfit nominees must exist. And Gingrich is correct that extracting information from a recalcitrant president is perfectly legitimate in a confirmation hearing.

In this case there is every reason to flyspeck Hagel’s finances. That 2007 Rutgers speech (at which Hagel is accused of labeling the State Department an “adjunct” of the Israeli government) was, as Bret Stephens points out, “co-sponsored by the university’s Center for Middle Eastern Studies, chaired at the time by an Iranian-American academic named Hooshang Amirahmadi. The Middle Eastern Studies department was, in turn, generously funded by the New York-based Alavi Foundation.” The Alavi Foundation? Well, it is peculiar in the extreme that Hagel would have graced that group with his presence:

 In December 2009, Farshid Jahedi, its president, pleaded guilty to a count of obstructing justice by destroying documents, after the feds charged the foundation with being a front group for the Iranian government and seized foundation assets in the U.S. worth about $500 million.

 

“For two decades,” charged U.S. Attorney Preet Bharara, “the Alavi Foundation’s affairs have been directed by various Iranian officials, including Iranian ambassadors to the United Nations, in violation of a series of American laws.”

Did this same group pay Hagel for this and/or other speeches? We don’t know because Hagel won’t tell us.

But let’s say that Hagel produced all the required information. Nevertheless, do senators have an independent obligation to stop nominees they honestly believe are incapable of performing their jobs? This, I would argue, is evident in the oath they take. They swear not to defend the president but to defend the Constitution, “against all enemies, foreign and domestic.” Does that not entail ensuring a capable civilian to oversee the military?

Sen. John McCain (R-Ariz.) seems to have confused comity — trying to get along in the interests of conducting business — with deference, the deliberate sublimation of one’s own judgment, whatever that may be. The former is arguably a virtue, but the latter leads to perverse results. Senators wouldn’t vote to confirm someone whose substance-abuse problem made it impossible to perform his or her job; someone with intellectual shortcomings and appalling judgment should also be disqualified if the senators in good faith think these are debilitating. And I don’t know how anyone watching that hearing could conclude that Hagel is competent, capable and possessing sound judgment.

Gingrich once again: “This is just such Washington nonsense. You look at what Democrats did to Clarence Thomas. You look at what Democrats did to Judge Bork, you look at the three months that John Tower was hung out to dry by the Senate.”

And he ridiculed the idea that “no matter how stupid Chuck Hagel is, no matter how bad his performance, no matter how much he keeps in secret, we all know he is an honorable man. How do we know that?”

And moreover, stupidity should be grounds for opposition as well.

This dilemma hardly ever arises because — if you want “unprecedented” — we’ve never had a nominee for a top national security post with so many problems in his record, possessing so little acumen and so incapable of responding sensibly to Senate committee members. Usually, if the president has goofed in nominating such a character, he pulls the nomination. This president has not. In such an instance, the obligation to protect the Constitution from enemies, foreign and domestic, falls to the Senate.

The GOP senators need to keep in mind that the phrase is not to “support and defend the Constitution of the United States against all enemies, foreign and domestic, unless I have to block someone unfit to run the Pentagon.” There is no “comity” exception to their oath, and they risk losing their own standing as defenders of defense by rubber-stamping what Ruth Marcus (on the same roundtable) rightly called an “appalling” performance. (“I was going to go with execrable, but I’ll settle for appalling. It was an appalling performance.”)

Really, why have hearings if you can turn in a performance such as Hagel’s and still get the job?

Jennifer Rubin writes the Right Turn blog for The Post, offering reported opinion from a conservative perspective.