The Senate appears in The Bob Zadek Show as an institution whose powers are treated as textual and political rather than moral or legal. Across four episodes the Senate is discussed in connection with judicial confirmation, impeachment, apportionment and internal administration. Bob Zadek interviews law professors, a former Nixon staffer, and a public policy scholar, and the excerpts show the Senate functioning as a recurring case study in how constitutional text allocates discretion.
Confirmation and the absence of a duty to consent
Gail Heriot, a law professor described by Bob Zadek as a student of the Constitution, told Zadek that the Constitution says the President “shall nominate” and therefore has a duty to make a nomination, but that the Senate has no duty to consent Gail Heriot on the Significance of Justice Scalia’s Passing (2016). In her account the Senate can exercise its discretion in any way it wants and is not required by the Constitution to act on a nomination. Zadek put the point back to her: the Constitution says the President shall appoint with the advice and consent of the Senate, but does not say the Senate shall advise and consent, nor that it shall promptly do so. Heriot agreed with that summary, adding that there is also no “should” for voters, who can vote senators out if they please. She said the framers were wise enough not to require things unnecessary to require and that consent cannot be mandatory, because then it would not really be consent. The exchange concerns a Supreme Court vacancy following the death of Justice Scalia.
Impeachment as a political rather than legal process
John Rothmann, described in the excerpt as having worked for Richard Nixon, told Zadek that what happens in the Senate on impeachment is not a trial in the traditional sense but a political process Withholding Judgment on Impeachment with John Rothmann (2020). He said senators take an oath and sign a register affirming open-mindedness and impartiality but that this is not what happens, because Democrats are already committed to removing the president and Republicans to keeping him. Rothmann said facts, witnesses and evidence do not matter because positions are fixed, and he extended the point to Mitch McConnell, Lindsey Graham, Chuck Schumer and Dick Durbin, saying they had all predetermined. Zadek said the oath of impartial justice is not in the Constitution but was written under the rules of the Senate, and he asked how a hundred senators can be expected to be impartial when everything about the process is partial. Rothmann also recounted the Nixon precedent: Barry Goldwater, John Rhodes and Hugh Scott went to the White House on August 7th, 1974 and told the president he did not have the votes to survive. Goldwater told Rothmann he had responded to Nixon’s question about how many Senate votes he had by saying six at most and that Goldwater was not one of them. Rothmann said Nixon resigned because he knew he had impeached himself, and that no president facing trial in the Senate has been convicted and removed from office.
Apportionment and reform
Caroline Fredrickson proposed adjusting the Senate’s structure rather than abolishing it Caroline Fredrickson on the Progressive Constitution (2021). She said the ratio of population to senators from a state like California to a state like Wyoming is radically different and gives Wyoming much more representation. Her proposal would ensure every state has one senator and adjust the remaining senators based on population, continuing to represent states while giving somewhat more to California than to Wyoming. Zadek characterized this as correcting the undemocratic Senate and making it more democratic, and noted that the 17th Amendment, which he said changed to direct election of senators from appointment by state legislatures in 1913, was a first step in that direction. Zadek said the founders would have regarded the Senate’s undemocratic character as intentional, with the House as the People’s House and the Senate vaguely similar to the House of Lords, a more thoughtful body removed from the passions of the moment. Fredrickson agreed with that characterization and said part of the reason for the Senate was a compromise to bring Southern states on board for adoption of the Constitution, and she connected the Senate and the Electoral College. She said her approach sees value in the federal structure, which adds to government accountability and facilitates policy experimentation, but that the current disproportion between states is an extreme requiring tinkering rather than radical change.
Deliberation and internal administration
Ilan Wurman described a proposed restructuring of the Senate in a mini-convention’s work product The Conservative Constitution (2021). He said the proposal doubled down on the anti-democratic quality of the Senate, making it smaller with one senator per state, fifty senators in total, serving a single nine-year term so they are not up for reelection, and required to take an oath to legislate for the common good. He said the convention nearly made Senate deliberation secret but did not, because that was too far for some on the committee. Wurman defined democracy as the people choosing who makes the rules on an ongoing basis through election, said he is Churchillian in regarding democracy as the worst form of government except for all others tried, and cited Federalist 10 on creating a popular government that remedies the diseases most incident to popular government. He said the Constitution should set the structure and terms of deliberation for the common good and that the Senate’s structure resolves problems of democracy while remaining a popular government, with senators chosen by the people but required to deliberate and legislate for the common good and to avoid rent-seeking and partiality.
Steven E. Rhoads told Zadek about the House and Senate cafeterias as an illustration of private versus public administration The Economist’s View of the World (2022). He said the House cafeteria is run privately through a contractor, is very efficient, returns over a million dollars a year to the House and still makes money, and attracts Senate employees because the food is good and cheap. The Senate operation, by contrast, was all public, lost money every year and required a subsidy of several million dollars from the general taxpayer. Rhoads said Dianne Feinstein, as head of a committee, reported that the food was terrible and inefficient and that contracting out was necessary, and had to convince Democrats in a Democratic Senate who opposed firing public employees and hiring cheaper private ones. Rhoads said there was hooting and booing when she proposed it, until she asked whether they preferred more subsidy or a twenty percent price increase, after which they agreed to contract out like the House. Zadek drew the lesson that government is as good as anyone at providing money but terrible at providing the service itself, and connected it to school choice and charter schools.
Across episodes
The Senate is treated in these episodes as a body whose powers are discretionary and political, but the excerpts do not show a single argument developing across them. Heriot and Rothmann both frame the Senate’s role in confirmation and impeachment as political rather than legal, Fredrickson and Wurman both propose restructuring the Senate, and Rhoads discusses its internal administration. The episodes touch the same topic from different directions rather than advancing a shared line of argument.
What the sources do not cover
The excerpts do not state the outcome of any confirmation fight, the text or fate of any reform proposal, or the details of any impeachment vote. They do not give the names of the judicial nominees discussed, the state a city is in, or the titles of the guests beyond what the labels and introductions provide. The Fredrickson and Wurman excerpts describe proposed restructurings without reporting whether they were adopted or introduced as legislation.