Let me start with something that I know is not politically correct. It’s the name “Hegseth”. I find it both hard to pronounce and hard to type. So, from now on, on this blog, he will be Pete Headset. I know that Donald Trump (hereafter DJ), who never has heard a name he couldn’t change, would approve.

So last night, Pete Headset was confirmed by the United States Senate as Secretary of Defense. Over and done. There was a vote, every senator was present, the result was a 50-50 tie, and Vice President J.D. Vance (hereafter JD) broke the tie by voting for the confirmation of Headset.

But it got me thinking. And this is where you will have to bear with me. Sorry ’bout that.

The Constitution provides that in two types of situations (presidential appointments and treaties), the “advice and consent” of the Senate is required. In no other instances, is this term used in the Constitution, and nowhere does the Constitution describe what either “advice” or “consent” means. There seems to be a common thought that “consent” means “majority vote”. But I am not sure that is necessarily the case.

The Senate operates by a set of “rules”, which – as I looked last night quickly – only mentions “consent” in Rule XXXI, which deals with nominations. But here again, “consent” is not defined, nor is “confirmation”. Again, the assumption is that the majority rules.

Now, I don’t know the history of the Constitutional provision or of the Senate rule, and finding that out would be interesting, but I have a lot of questions that I think are worth pursuing.

One of the things I did last night is look at the etymology of the word “consent”, and saw that it comes from the same Latin root as “consensus”. Clearly, last night’s vote did not evidence the consensus of the Senate that Headset should be confirmed.

Secondly, I looked up the term “group consent” – I didn’t know what else to look up. I found many, many references to the writings of ethicists and bio-ethicists, and didn’t find anyone who said that to establish “group consent”, you should take a vote and that the barest majority wins.

Thirdly, I wondered if the way to find out if the Senate has consented to a nominee is to take a vote at all. In other words, when the Senate votes on, say, a bill, it is clear that you take a vote and the majority wins. That is clear from the Constitution and the Senate rules, as well as common practice. But does “consent” come through a simple yes/no vote? After all, there is nothing in the Constitution that equates “consent” with “majority” or “majority vote”.

And let’s go a step beyond that. The Vice President, who is not a member of the Senate (not a Senator), but who presides over the Senate under the title “President” of the Senate, gets a tie breaking “vote”. But if “consent” is not a “vote” in the way approval of a bill into law is (and nothing in the Constitution says that it is), should the Vice President even get a vote here? After all, it is a given that he will vote “aye”, and he had not been involved in any of the committee work or full Senate body work that preceded the vote.

And if you take away J.D.’s vote, there was a tie, and the nomination would have failed. There would have been no consensus, and no “consent”.

“Enough”, you say. Get on with your life.

Alright, but…..a few more things. Three Republicans did vote against Headset. One, Lisa Murkowski of Alaska can be counted on to vote as she thinks she should. Another, Susan Collins of Maine, can be counted on to let you know how she thinks she should vote, but often then votes opposite what she thinks she should do. The third, Mitch McConnell…….well, I hope he does not think that this vote will make up for all of the horrific things he did as majority leader. Because it won’t. And, what kind of leader is he, if he could not convince one other Republican to vote their conscience in this matter, to be a Murkowski just once.

And then there was Tom Tillis, who was apparently on the fence until some time yesterday evening. Poor Tillis could not vote his conscience, I bet, in part because of D.J.’s quick visit to western North Carolina yesterday morning. Seeing how D.J. is ready to throw California to the lions unless they kow-tow to his whims of the day, poor Tillis must have been thinking: I gotta keep D.J. on my side right now; the future of North Carolina depends upon it. And he was probably right.

Reports of journalists and Democratic senators are consistent in saying that many Republicans believe that Headset is an atrocious choice for this job. But they are afraid to vote the way they think they should. Maybe they shouldn’t count in the consent count, either.

There is another provision in the Senate Rule XXXI that provides that at any time in considering a nomination, the Senate can determine that the discussions and the votes can be taken in Executive Session, without public eyes upon them. Maybe this would be better – to keep the trstimony sessions public, but the vote itself secret. After a secret vote on a nomination, the Senate rules do provide that a Senator can make his (the rules are silent as to “her”) vote public.

Finally, yes, it is true. I offer neither a definitive better way, not a road to a better way. I didn’t speculate on the possible role of the judiciary.

Maybe I should just go back to sleep.