May 21, 2007 -- If Senate Democrats carry through with their vow for a "no-confidence" vote over embattled Attorney General Alberto Gonzales, they will be charting new territory in American politics.
Many Democratic and six Republican senators have called for the attorney general to resign, or for the president to fire him. But the two men have ignored those calls.
Frustrated over the apparent political firing of U.S. attorneys, among other things, Democratic Sens. Chuck Schumer of New York and Dianne Feinstein of California announced last week that they would seek to hold a no-confidence vote about Gonzales on the floor of the Senate.
"Whether it's Guantanamo Bay or U.S. attorneys or the NSA or saying 'I don't recall' over again in testimony, I don't think the Americans are well-served" with Gonzales at the Justice Department, said Feinstein last week.
But if the no-confidence vote registers the frustration of Democrats and some Republicans that President Bush has not gotten rid of Gonzales, it's a novel way to make themselves heard.
The U.S. Senate has never held a no-confidence vote before. Or at least not one they could find at the Senate Historian's office. At the moment, the Democrats aren't entirely sure what to make of the historical precedent.
"A lot of things have happened in 200 plus years of congressional history," said Senate historian Richard Baker. At Baker's office in the U.S. Capitol, they search through old newspapers online and internal records to try to find another instance of a no-confidence vote. But so far, they are stumped.
No-confidence votes, after all, are a European convention -- in countries on the Continent and in the United Kingdom, governments are usually controlled by the political party (or coalition of parties) and headed by the prime minister. In those states, a no-confidence vote is used by the out-of-power party to demand a new election. A successful no-confidence vote means it's time for a new prime minister.
But here in the United Sates, where those clever framers separated power between the generally elected executive and the locally elected legislature, there hasn't been a need for no-confidence votes. The Senate already has the power to assert itself over the executive branch because it has the discretion to appropriate the funds that the president uses to run the government and it also has the power to OK (or not) the president's nominations (Gonzales was confirmed by a Senate vote of 60-36 in 2005).
So, Baker said a no-confidence vote is "completely irrelevant to the operation of the American governmental system. But having said that, it is well within the Senate's right to have the Senate express its opinion on any subject," Baker said.
For example, earlier this year senators spent months wrangling over a nonbinding resolution, which never passed, that would have opposed Bush's Iraq strategy. Short of cutting off war funds, lawmakers have no say in the President's war strategy. But they wanted to make sure he knew their opinion.
The closest Baker has come to finding a no-confidence vote in the United States was the 1834 censure of President Andrew Jackson, a Democrat, for withholding documents from Congress, then controlled by the Whig Party. It should be noted that Sen. Russ Feingold, D-Wis., has suggested that Bush be officially censured now, though few of his colleagues have signed on.
History has also shown that just because the Senate loses confidence in something does not mean that confidence cannot be regained. Jackson's 1834 censure was only temporary. The censure was "expunged" years later in 1837, when the Whig's lost control of Congress and Jackson's Democrats took power.
Then, in 1886, the Republican caucus in the Senate voted to express its frustration with then-Attorney General Augustus Garland, a Democrat and former senator from Arkansas who also withheld some documents from Congress.
But no matter how frustrated lawmakers become with Cabinet secretaries, the Constitution only gives the Senate the power to approve their nomination, not remove them from office.
Congress did try after the Civil War to assert its authority for removing Cabinet secretaries when it passed the Tenure of Office Act. President Andrew Johnson was trying to fire Secretary of War Edwin Stanton, who had support in Congress. As Johnson sparred with the "Radical Republicans" in Congress, Stanton barricaded himself in his office and refused to leave. The House of Representatives voted to impeach Johnson for violating the Tenure of Office Act, though the Senate narrowly voted not to remove Johnson from office. Stanton eventually resigned. That law was repealed in 1887 before the Supreme Court could offer an opinion on its constitutionality.
One struggles to envision a scenario where Gonzales barricades himself in his office today.
The Democrats of today, while they have not yet forced a no-confidence vote, have recently considered the notion. Last year, ahead of the November midterm election, then-Senate Minority Leader Harry Reid suggested a no-confidence vote for Secretary of Defense Donald Rumsfeld. The vote did not take place and Reid, now in the majority, did not have the opportunity to bring it up after he took power because Rumsfeld left the position almost immediately after the election.
Sen. Arlen Specter of Pennsylvania, the ranking Republican on the Senate Judiciary Committee, has looked into his crystal ball and sees the same fate for Gonzales. Specter said this weekend he expects Gonzales will resign before the Democrats, who control Capitol Hill, can hold such a no-confidence vote. Specter has not himself called for Gonzales to resign, though six other Republican senators have. In explaining why he won't call for Gonzales to resign, Specter said last week that he realized it was up to the president to decide who serves in his administration.
It is unclear when Democrats will be able to fit the no-confidence vote into their legislative schedule before the Memorial Day break. First, they have promised to fund the war in Iraq and debate immigration reform.