Cross-posted at ProgressiveHistorians.com
One of the favorite GOP talking points concerning high-level political appointees is that the President submits names, and the Congress approves them. It's that simple.
This line of reasoning is what some conservatives might call "revisionist history". The implication is that Congress is intended simply as a rubberstamp of Executive appointments. Oh how the Framers must quake in their graves!
First let us take a look at the relevant section of the Constitution. What does the language explicitly state:
by and with the Advice and Consent of the Senate, [The Executive] shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
OK, this is all well and good. But there must be some reason for inserting the clause "advice and consent" into Article 2, Section 2 of the Constitution.
What exactly does this mean?
Is it simply the President nominates, and the Senate approves?
Well, we can actually find a good answer to this question. In an attempt to sell the new Constitution to the American people we have a series of articles written by John Jay, James Madison, and Alexander Hamilton called The Federalist Papers.
Lets take a look at Alexander Hamilton's reasoning behind this nomination process in Federalist Paper Number 76.
It has been observed in a former paper, that "the true test of a good government is its aptitude and tendency to produce a good administration."
OK, that seems reasonable.
Hamilton then goes to say that we achieve a good government when the Executive branch officers are well-qualified and capable citizens. Fair enough.
Hamilton then lays out a case that there are three basic ways of selecting officers of the United States.
- Would be to vest all of the power in one man.
- Would be to vest all of the power in a select group of "moderate number".
- Would be to vest the power in all citizens.
Hamilton dismiss the third option as impractical. After all, if every citizen had a direct vote in the process it is likely that staff positions would not be filled until the end of a President's term and the public business would never be done.
The exercise of it by the people at large will be readily admitted to be impracticable; as waiving every other consideration, it would leave them little time to do anything else.
OK, so option #3 is off the list.
That leaves us with #1 and #2.
Like many of the Framers Hamilton openly admits advantages and failings with both options.
Advantages of Option #1
The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation.
This is a debatable point. It assumes that the one man (or woman) has been chosen wisely by the people at large, and that the person will care greatly about his or her public reputation. Still, point taken.
He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will have FEWER personal attachments to gratify, than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection. A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body.
OK, this is all well and good. One person will have fewer political favors to repay than a large group of people. Reasonable enough.
Also, a group of people with equal power, and an equal number of attachments to gratify are likely to have a harder time selecting one person that will mollify their diversity of interests. But surely there are some concerns in vesting ALL of this power in just one individual.
As is often the case Hamilton is a step ahead of us.
Disadvantages of Option #1
It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing.
Combining options #1 and #2
Makes sense. So Hamilton is not asking us to chose between #1 and #2. He's saying that there are virtues to both Executive selection and Senate approval. That one will serve as a check against the excesses of the other.
The danger to his own reputation (the President), and, in the case of an elective magistrate (the appointee), to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He (the President) would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.
Well, hmm. When I think of the nomination of Alberto Gonzales I think:
- Came from the same state.
- Personally allied (Gonzales, as we know owes his political career to Bush).
- "Possessing the necessary insignificance and pliancy to render them to the obsequious instruments of his please"? Check.
OK, so the system didn't entirely work in this instance. But I find the greatest fault, not so much in the system itself, but in the judgment of individual members. Would Gonzales's nomination have passed the smell test in a Senate controlled by the opposition? Probably not.
Which brings us to the next point.
Though it might therefore be allowable to suppose that the Executive might occasionally influence some individuals in the Senate, yet the supposition, that he could in general purchase the integrity of the whole body, would be forced and improbable.
Just compare the bipartisan support for someone along the lines of Robert Gates with the number of "no confidence" votes for Gonzales. There is some truth to this assumption.
Hamilton goes to outline a system of additional checks and balance within the mixed Nomination process.
A man disposed to view human nature as it is, without either flattering its virtues or exaggerating its vices, will see sufficient ground of confidence in the probity of the Senate, to rest satisfied, not only that it will be impracticable to the Executive to corrupt or seduce a majority of its members, but that the necessity of its co-operation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of that magistrate. Nor is the integrity of the Senate the only reliance. The Constitution has provided some important guards against the danger of executive influence upon the legislative body: it declares that "No senator or representative shall during the time FOR WHICH HE WAS ELECTED, be appointed to any civil office under the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person, holding any office under the United States, shall be a member of either house during his continuance in office."
Bringing it all together
Which brings us to the original question: So the President nominates, and the Senate approves?
Not exactly.
But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal.
So yes, it might. A check against the Senate's disapproval might be that the next nominee could be an even worse option, but at the same time, the Executive should be prevented from bringing about a long line of unqualified applicants, because the Executive would also suffer in the public eye. So we have a compromise point: "The person ultimately appointed must be the object of his (the President's) preference, though perhaps not in the first degree."
In other words, the president doesn't always get what he wants. But the Senate will generally show deference toward the president in his or her selection--except in exceptional cases.