David Thomas: “I must say that this is one of the least straightforward legal arguments that I have seen. In effect, the administration…”

“I must say that this is one of the least straightforward legal arguments that I have seen. In effect, the administration is saying ``go ahead and hold a hearing on the fitness of this nominee to occupy and conduct the duties of an office which we have not yet created but will create at some time in the future.'' I believe that the clear and serious problems with that argument are self-evident. Mr. President, what the OLC proposes raises a serious constitutional separation of powers issue in my mind. The Senate's advice and consent function requires a review not simply of the nominee, but of his or her qualifications and fitness to fill a particular office. To call for Senate confirmation of a nominee before the creation of the office that he would fill would deprive the Senate of that complete inquiry. The OLC has sought to brush aside the problems created by asking us to hold a hearing on an uncreated office by stating that ``[e]ven if that particular ambassadorship has yet to be created, the duties and responsibilities of an ambassador are of course perfectly familiar to the Senate.'' But hypothetically, Mr. President, if we were to confirm an ambassador for an as-yet uncreated office, what is there to assure us that a President could not simply change the nature or duties of the office at his whim after the fact, leaving us--having given our consent--with no constitutional recourse?”