“This book is destined to become the leading scholarly study of the American appointments process. It is comprehensive, eminently reasonable, and beautifully written. Gerhardt has assembled a rich collection of examples and he has persuasively interpreted their significance for American political practice. The Federal Appointments Process will be indispensible to political scientists, historians, and law professors who study the American separation of powers.”—Christopher Eisgruber, Princeton University
The Federal Appointments Process: A Constitutional and Historical Analysisby Michael J. Gerhardt
Although the federal appointment of U.S. judges and executive branch officers has consistently engendered controversy, previous studies of the process have been limited to particular dramatic conflicts and have tended to view appointments in a vacuum without regard to other incidents in the process, other legislative matters, or broader social, political, and… See more details below
Although the federal appointment of U.S. judges and executive branch officers has consistently engendered controversy, previous studies of the process have been limited to particular dramatic conflicts and have tended to view appointments in a vacuum without regard to other incidents in the process, other legislative matters, or broader social, political, and historical developments. The Federal Appointments Process fills this gap by providing the first comprehensive analysis of over two hundred years of federal appointments in the United States, revealing crucial patterns of growth and change in one of the most central of our democratic processes.
Michael J. Gerhardt includes each U.S. president’s performance record regarding appointments, accounts of virtually all the major confirmation contests, as well as discussion of significant legal and constitutional questions raised throughout U.S. history. He also analyzes recess appointments, the Vacancies Act, the function of nominees in the appointment process, and the different treatment received by judicial and nonjudicial nominations. While discussing the important roles played by media and technology in federal appointments, Gerhardt not only puts particular controversies in perspective but also identifies important trends in the process, such as how leaders of different institutions attempt to protect—if not expand—their respective prerogatives by exercising their authority over federal appointments. Employing a newly emerging method of inquiry known as “historical institutionalism”—in which the ultimate goal is to examine the development of an institution in its entirety and not particular personalities or periods, this book concludes with suggestions for reforms in light of recent controversies springing from the longest delays in history that many judicial nominees face in the Senate.
Gerhardt’s intensive treatment of the subject will be of interest to students and scholars of political science, government, history, and legal studies.
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The Federal Appointments Process
By Michael J. Gerhardt
Duke University Press
Chapter OneTHE ORIGINAL UNDERSTANDING OF THE FEDERAL APPOINTMENTS PROCESS
It is customary to gloss over the original understanding of the federal appointments process because the relevant portion of the Constitution-the Appointments Clause-is relatively succinct and straightforward: "[The president] shall nominate, and by and with the Advice and Consent of the Senate, 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." By its plain language the clause empowers the president to nominate certain federal officials whose final confirmation is left for the Senate to decide. The clause also authorizes Congress to establish other offices to be filled by people nominated by the president, subject to the confirmation of the Senate.
Some other appointment matters, though not explicitly provided for by the clause, are also relatively easy to determine from the plain meaning of the constitutional text and reasonable inferences from the structure. For instance, the Constitution plainly does not require the full Senate to conduct hearings on the nominations of each of the officials covered by the clause and to confirm or reject each of those nominees by a majority vote. The Senate's authority to deviserules for its own proceedings has been commonly construed as permitting it to delegate to appropriate committees (or subcommittees) the functions of gathering relevant evidence, taking testimony (such as that of nominees), and making recommendations on nominations. Such delegation has become common for numerous reasons. For instance, it has helped to streamline the Senate's decision making in a number of areas (including appointments), thereby making it possible for senators to distribute or allocate their time and energies as each sees fit. Moreover, delegation allows members to specialize in areas of particular concern to their constituents and provides an environment for more senior members to pass on institutional knowledge to more junior members and to inculcate in them norms of reciprocity, apprenticeship, and the like. The Senate has also implemented safeguards or mechanisms to prevent any abuses resulting from the delegation of responsibility to committees. One important check on committee authority is the fact that the Senate's rules governing proceedings may be set aside in several ways, including by unanimous consent of the Senate, the substitution of a different rule adopted by a majority vote, or a judgment made by the Senate leadership or the whole body that further action is unnecessary in light of the committee's recommendation.
Other questions about the allocation of power over federal appointments do not have clear answers. One vexing question, for instance, is who precisely qualifies as an "officer of the United States" such that his or her nomination should be made by the president and subsequently approved or rejected by the Senate. Nor is it crystal clear whether the Appointments Clause requires the president to consult with the Senate before making a nomination by virtue of its grant to the Senate of the power to give advice on certain appointments. Yet another issue is whether the Constitution limits or defines the criteria that the president must follow in choosing which people to nominate or that the Senate must consider in approving or rejecting presidential nominees for certain offices.
The delegates at the constitutional convention, and later the ratifiers, discussed some of these questions. For all practical purposes, however, the record is silent on the question of whether the phrase "advice and consent of the Senate" was meant to have the same meaning in the contexts of treaty ratifications and the appointments of ambassadors, cabinet officers, inferior federal judges, and Supreme Court justices. The discussion never approached that level of detail. The debates over the structure of the federal appointments process focused instead on a much broader question: whether the power should be vested in the entire legislature, as proposed in the original Virginia Plan; in the Senate alone; in the president alone; or in the president with the advice and consent of the Senate-the plan that was adopted in the closing days of the constitutional convention.
The latter proposal, advanced most persistently by Alexander Hamilton of New York and Nathaniel Gorham of Massachusetts, was twice defeated before its ultimate approval by the constitutional convention. The final approval, pursuant to a motion by James Madison of Virginia, displaced a prior vote vesting the authority in the Senate. The different proposals reflected a serious division at the convention between two groups, each with different concerns about how to design the federal appointments process. One group, consisting of Oliver Ellsworth and Roger Sherman of Connecticut, Elbridge Gerry of Massachusetts, Benjamin Franklin of Pennsylvania, George Mason of Virginia, and John Rutledge of South Carolina, feared that granting the appointment power to the executive would lead to monarchy. The other group, consisting of Gouverneur Morris and James Wilson of Pennsylvania, Madison, Gorham, and Hamilton, primarily worried that granting the appointment power to the national legislature would produce cabals, intrigue, and factions. Ultimately, the final compromise giving rise to the Appointments Clause sought to avoid abuse rather than to guarantee a specific outcome, such as the appointment of the best-qualified people to important posts.
THE FOUNDERS' DELIBERATIONS ON ALLOCATING THE FEDERAL APPOINTMENTS AUTHORITY
The need for the federal Constitution to provide some mechanism for the appointments of certain officials in the new national government was obvious to the constitutional convention's delegates from the start. Their respective state experiences informed their judgments considerably. They knew firsthand that "[n]o state constitution granted to the governor an independent appointing power. [Moreover, i]n several states the governor had little or no appointing power; in those states in which he exercised a limited appointing power, it was always with the advice and consent either of a council appointed by the legislature, or by the legislature itself. Only in Massachusetts, Maryland, New Hampshire, and Pennsylvania were judges appointed by the governor, and in three of the states he shared the appointing power with a council." For example, Virginia's constitution of 1776, reflecting the national trend, permitted the legislature to choose judges, the secretary of state, the attorney general, the governor's cabinet (styled the "Privy Council"), and even the governor himself. The Massachusetts Constitution, despite a clause that provided for virtually absolute separation of powers between the branches of the state government, required the legislature to select a host of executive officers.
Many of the delegates from states with little or no gubernatorial involvement in the appointments process regarded their states' practices in this area as failures. These practices had originated as responses to fears of monarchic power and as efforts to sacrifice some energetic government in exchange for greater accountability and representation. Most representative legislatures, however, had fallen easy prey to demagogues, provincialism, and factions. Consequently, in spite of the sharp restrictions imposed by most of the states on the appointment powers of governors, the delegates at the constitutional convention quickly accepted the desirability of a significant presidential role in making certain federal appointments. This agreement tracked their common understanding that the Articles of Confederation had failed to grant sufficient authority to the national government. Consistent with this understanding, they voted early in the convention's deliberations to establish presidential authority to appoint all officers "not otherwise provided for." This vote took place without debate and with all of the states in agreement except Connecticut, which divided on the issue. Subsequently, the debate over federal appointments in the convention followed two tracks: the delegates did not agree on which appointments required coverage in the Constitution, nor on where to vest the authority to appoint federal judges. Only at the end of the convention did the two tracks converge in the compromise that led to the Appointments Clause. Even then, some delegates complained that because of the eagerness of many delegates to complete their deliberations on the new constitution and leave Philadelphia, some issues, such as where to vest the authority to make federal appointments, had not been resolved. At the very least, these disagreements indicate that some of the delegates had wanted to vest, or had seriously considered vesting, the authority for making different kinds of appointments in places other than those approved in the final draft of the Constitution.
Indeed, the very first plan for the new national government considered by the convention, the Virginia Plan introduced by Edmund Randolph on May 29, 1787, placed the appointment authority in two different places, depending on the kinds of appointments involved. Subsequent debate accepted this division. Consequently, the focus of the initial discussion on federal appointments was on the Virginia Plan's proposal to make the president alone responsible for such appointments. The operative provision empowered him "to enjoy the executive rights vested in Congress by the Confederation." James Wilson understood the powers given to the president by virtue of this provision to include "those of executing the laws, and appointing officers, not (appertaining to and) appointed by the Legislature." James Madison tried to clear up any misunderstanding by moving to insert the words "with power to carry into effect the national laws, to appoint to offices in cases not otherwise provided for." The convention approved Madison's motion. Afterward, Madison stated that he did not think the words "to appoint to offices" were really necessary, but he thought that their inclusion would help "to prevent doubts and misconstructions."
As an alternative to the Virginia Plan, William Paterson proposed the New Jersey Plan on June 15, 1787. It provided for, inter alia, a plural executive with the power "to appoint all federal officers not otherwise provided for." On June 18, Alexander Hamilton introduced a plan far more sympathetic to the establishment of a very strong chief executive. His proposed constitution would have vested the executive with the sole power to appoint "the heads or chief officers of the departments of Finance, War, and Foreign Affairs" and to nominate "all other officers[,] subject to the approbation or rejection of the Senate." Hamilton's plan, though it did not attract any discussion or comment at the time it was proposed, was the first to suggest the method of appointment ultimately adopted by the convention. He proposed that the Senate should have only the power of rejecting or approving nominees suggested by the president, reflecting his view that the Senate should not participate in exercising the nominating power. Yet another plan, proposed by Charles Pinckney of South Carolina, vested the appointment power in Congress.
The next discussion of any proposed procedures for administrative or other nonjudicial appointments occurred as part of a series of resolutions in late July. The latter were referred on July 23 by the convention sitting as a Committee of the Whole to the Committee on Detail, which was responsible for putting all formal recommendations and suggestions into draft form. One resolution provided "that a national Executive be instituted, to consist of a single person," who would have the power "to appoint to all offices in Cases not otherwise provided for." This resolution clearly vested the president with some appointment powers, and even with respect to those that remained with Congress the president was given the "right to negative any legislative act, which shall not be afterwards passed, unless by two-third parts of each branch of the national Legislat[ure]." By exercising this "negative" privilege, the president could at least have held up any appointment by Congress until such time as it confirmed its previous nomination or proposed another more to the liking of the president. On August 6, the Committee on Detail issued a report proposing, inter alia, a clause giving the Senate the additional power to appoint ambassadors and Supreme Court justices and another providing for the appointment of the treasurer by both houses of the legislature.
On August 23, the convention considered the proposal to vest the appointment authority for ambassadors in the Senate. Gouverneur Morris argued against it. He viewed "the [Senate] as too numerous for the purpose; as subject to cabal; and as devoid of responsibility." Wilson strongly agreed. On the next day, however, the convention again considered the provision that the president should "appoint officers in all cases not otherwise provided for by the Constitution." Roger Sherman objected that many officers, such as general officers in the army in peacetime, should not be appointed by the president, and he moved to add the words "or by law," which would have allowed Congress to determine the scope of the president's appointment power. The motion lost, with only Sherman's home state, Connecticut, voting for it.
On August 17, the convention separately considered the proposal to vest in Congress the authority to appoint the national treasurer. Opposing this proposal, George Read of Delaware moved to leave the appointment of the treasurer to the president. "The Legislature," he suggested, "was an improper body for appointments. Those of the State legislatures were a proof of it. The Executive being responsible would make a good choice." Mason opposed the motion on the ground that "the legislature representing the people ought to appoint the keepers" of the public's money. The motion lost, but on September 14, the final day on which the convention considered the text of the Constitution, the delegates adopted Rutledge's motion to delete the special provision and let the treasurer be appointed in the same manner as other officers.
A parallel but even more heated debate had focused on the Virginia Plan's proposal that the national legislature should choose federal judges. When this provision came before the convention for consideration on June 5, James Wilson led the opposition. He explained: "Experience sh[o]wed the impropriety of such appointments by numerous bodies. Intrigue, partiality, and concealment were the necessary consequences. A principal reason for unity in the Executive was the officers might be appointed by a single, responsible person." John Rutledge responded that he "was by no means disposed to grant so great a power to any single person. The people will think we are leaning too much towards Monarchy."
At this point, Benjamin Franklin, who was sometimes prone to make his points through humorous jabs, asked the delegates to consider other possible mechanisms for judicial appointments. One possibility he suggested was the method used in Scotland, "in which the nomination proceeded from the Lawyers," for they would have an incentive to divide 30 the appointee's practice amongst themselves. Though Franklin's comment may only have been a jest, his suggestion foreshadowed the practice prevalent during the Carter administration and still popular in some states of designating special commissions, largely consisting of lawyers, to recommend judicial nominees to those with final appointing authority.
Ignoring Franklin's comment, James Madison, considered by many the chief architect of the Virginia Plan, expressed his agreement with Wilson's concerns about legislative "intrigue and partiality." However, Madison "was not satisfied with referring the appointment to the Executive." Instead, he proposed placing the power of appointment in the Senate, "as numerous en[ough] to be confided in-as not so numerous as to be governed by the motives of the other branch; and as being sufficiently stable and independent to follow their deliberate judgments." When the question finally came to a vote, the convention voted nine to two to defer consideration until a time of "maturer reflection."
Excerpted from The Federal Appointments Process by Michael J. Gerhardt Excerpted by permission.
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Meet the Author
Michael J. Gerhardt is Professor of Law at the College of William and Mary School of Law. His other books include The Federal Impeachment Process: A Constitutional and Historical Analysis and Constitutional Theory: Arguments and Perspectives, each in their second edition.
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