Appointments Clause

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APPOINTMENTS CLAUSE

Examining the debates of the constitutional convention of 1787, one finds that Article III, the Constitution's judicial component, proved to be its least controversial and the most readily draftable of all of its provisions. Delegates viewed the judiciary broadly as "the least dangerous branch," in the words of alexander hamilton, and such debate as did occur on the range and extent of the judiciary's power was predominantly concerned with the appointment of judges. Under edmund randolph'svirginia plan, the appointment power would have been granted to Congress as a whole, but the delegates yielded to james madison's countersuggestion to vest it in the senate alone. Further debate moved the delegates toward vesting the appointment power solely with the President. To resolve the impasse, a special committee of eleven delegates was constituted in late August. Its compromise report, suggesting presidential appointment "by and with the advice and consent of the Senate," was promptly adopted by the convention in early September, and it became part and parcel of Article III, section 2, paragraph two of the Constitution. Unamended, this provision governs today.

Under the terms of the appointments clause, Presidents have nominated and the Senate has confirmed, thousands of federal jurists. Although there have been some rejections of lower federal court nominees, by and large the Senate has been a willing partner in the confirmation process—arguably even playing a perfunctory role at this level. At the apex of the judicial ladder, the Supreme Court of the United States, senators have taken their role far more seriously, rejecting or refusing to take on one-fifth of all nominees to the high court. Thus, of 145 nominations made by thirty-five Presidents from 1789 through 1990, twenty-eight were formally rejected, purposely not acted on, indefinitely postponed, or were withdrawn by the President involved. (Presidents William H. Harrison, zachary taylor, and jimmy carter had no opportunity to choose any nominee; andrew johnson saw all of his rejected by a hostile Senate.) Of the twenty-eight rejections, all but five occurred in the nineteenth century.

The five rejections of the twentieth century—not counting the never acted on nominations of Homer Thornberry (lyndon b. johnson, 1968) and Douglas H. Ginsburg (ronald reagan, 1987)—were lower federal court judges John J. Parker (herbert c. hoover, 1930); Clement F. Haynsworth, Jr. (richard m. nixon, 1969); G. Harrold Carswell (Nixon, 1970); the aborted promotion of Justice abe fortas to chief justice by President Johnson in 1968; and most recently, President Reagan's nomination of United States Court of Appeals Judge Robert H. Bork in 1987, which was rejected by the decisive vote of 58–42 (see bork nomination).

Inevitably, the Senate's role in judicial appointments has frequently given rise to the questioning of its authority to weigh factors other than pure "competence" in considering a nominee's qualifications. Is it entitled to examine, for instance, political, personal, and ideological factors, or anything else that it may deem appropriate along the road to its ultimate judgment? The answer is clearly "yes," no matter how distasteful certain aspects of the senatorial investigative role in individual cases may seem to both lay and professional observers. That "politics" indubitably plays a role may be regrettable, but it is also natural under our system. It plays a distinct role at both ends of the appointment process.

Although only incumbent Presidents really know why they selected nominees to the Court (or gave the nod to members of their administrations to do the basic selecting for them), history does identify four reasons or motivations governing the selection process: (1) objective merit; (2) personal and political friendship; (3) balancing "representation" or "representativeness" on the Court; and (4) "real" political and ideological compatibility. Obviously, more than just one of these factors may have been present in most nominations, and in some, all four played a role; yet it is not at all impossible to pinpoint one as the overriding motivation. And, more often than not, it has been the fourth reason listed, namely, concern with a nominee's real, as opposed to his or her nominal, politics. This concern prompted Republican President william howard taft to give half of his six appointments to Democrats who were kindred political soulmates; it prompted Republican Nixon to appoint Democrat lewis f. powell, Jr.; it spurred Democrat franklin d. roosevelt to promote Republican harlan f. stone to the Chief Justiceship; and it caused Democrat harry s. truman to appoint Republican harold h. burton—to cite just a few illustrations. Yet, as history has also shown, there is no guarantee that what a President perceives as "real" politics will not fade like a mirage. Hence charles warren, eminent chronicler of the judiciary in general and the Supreme Court in particular, properly observed that "nothing is more striking in the history of the Court than the manner in which the hopes of those who expected a judge to follow the political views of the President appointing him are disappointed."

So why has the Senate chosen to reject or failed to confirm twenty percent of the presidential nominees? The record points to eight reasons: (1) opposition to the nominating President, not necessarily the nominee (for example, all of Andrew Johnson's selectees); (2) opposition to the nominee's perceived jurisprudential or sociopolitical philosophy (for example, Hoover's choice of Parker); (3) opposition to the record of the incumbent court, which, rightly or wrongly, the nominee presumably supported (for example, andrew jackson's initial nomination of roger brooke taney as Associate Justice; (4) "senatorial courtesy," which is closely linked to the consultative nominating process (for example, grover cleveland's back-to-back unsuccessful nominations of William B. Hornblower and Wheeler H. Peckham); (5) a nominee's perceived "political unreliability" on the part of the political party in power (for example, ulysses s. grant's selection of Caleb Cushing); (6) the evident lack of qualification or limited ability of the candidate (for example, Nixon's "I'll show the Senate" choice of Judge G. Harrold Carswell); (7) concerted, sustained opposition by interest and pressure groups (for example, the Hoover nomination of Parker and, most recently, Reagan's of Bork); and (8) the fear that the nominee would dramatically alter the Court's jurisprudential "line-up" (for example, the Bork nomination). Judge Bork's professional credentials were not in question; he lost overridingly because of his approach to constitutional law and constitutional interpretation.

The appointments clause connotes a joint enterprise: informed by the Constitution's seminal provisions and providing for a separation of powers and checks and balances. The President selects; the Senate disposes. The Senate's role is second, but not secondary.

Arguably, Presidents' judicial appointments are their biggest "plums." Few if any other posts a President has the authority to fill possess the degree of influence, authority, and constitutionally built-in longevity that characterizes the judicial branch. But there are many other offices to be filled by presidential selection, including, by the language of Article II, section 2, paragraph two, "Ambassadors, other public Ministers and Consuls…, andall other Officers of the United States, whose appointments are not herein otherwise provided for and which shall be established by Law.…" All such others are to be appointed "by and with the Advice and Consent of the Senate," but the Constitution adds an important caveat: "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."

The huge number of federal employees—some 3,500,000 as of mid-1990, not counting the military—has required Congress to provide for appointments as constitutionally authorized in the above-quoted ultimate sentence of the appointment power. In addition to all federal judicial nominations, Congress has retained full "advice and consent" authority over top positions of the military and the diplomatic services; over cabinet and top subordinate cabinet-level selections (it has drawn a line above a certain salary level for other high departmental and agency heads); and over specifically law-designated officials, such as independent regulatory commisioners. However, congress has vested appointive authority over huge numbers of nominations in the President alone—for example, the bulk of that cast army of civil service employees and almost all of the members of the armed forces (whose letters of appointment or draft are headed, "Greetings"—the butt of many jokes—are signed by the president in his role of chief executive). Moreover, again in line with the above-noted authority. Congress has seen fit to utilize its authority to vest the power at issue in the "Courts of Law."

The latter power became a hotly debated issue when Congress, in the Ethics of Government Act of 1978, created an independent counsel to investigate high-ranking officials in the executive branch. In accordance with the statute's provisions, the attorney general must request an independent counsel unless he or she "finds that there are no reasonable grounds to believe that further investigation or prosecution is warranted." The request for an independent counsel must be directed to a panel of three federal judges, who are authorized to appoint the counsel (also called a special prosecutor) and to delineate the counsel's jurisdiction. The act, which provides for removal of a court-appointed counsel by the attorney general only "for cause," was challenged by the President on sundry constitutional grounds, including the doctrine of the separation of powers (the chief executive's duty to see that laws are "faithfully executed") and the presidential appointing and removal powers. The controversy reached the Supreme Court in its 1987–88 term after a three-member panel of the U.S. Courts of Appeals for the District of Columbia had declared the statute unconstitutional by a 2–1 vote. In a dramatic 1988 opinion by Chief Justice william h. rehnquist, for a 7–1 majority in Morrison v. Olson, the high tribunal reversed the lower court, ruling that the provisions of the challenged law vesting appointment of independent counsels in the judiciary do not violate the appointments clause, that the powers exercised by the counsel do not violate the judicial article of the Constitution, and that the law does not violate the separation of powers principle by impermissibly interfering with the functions of the executive branch. In a lengthy stinging solo dissent, Justice antonin scalia charged his brethren with a misreading and gross violation of the separation of powers.

Aspects of the appointment power will continue to be controversial. It is a joint enterprise, even if the presidency can usually count on having its way. That there are major exceptions, however, was tellingly demonstrated by the Senate's dramatic rejections of President Reagan's Supreme Court nominee Robert H. Bork in 1987 and that by President george bush of John Tower to be his Secretary of Defense in 1989. Even if it is exercised infrequently, the Senate's potential check on the presidential prerogative is indeed real.

Henry J. Abraham
(1992)