CONFIRMATION PROCESS

The Constitution vests in the President the power to appoint, with the advice and consent of the U.S. senate, "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." The Framers, however, were mindful that the lifetime appointment of judges to a coequal branch might demand different procedures and considerations from the appointment of officers serving limited terms in the executive branch and, as a result, throughout a good deal of the constitutional convention of 1787 the method of appointing judges was considered separately from the process of choosing executive officers. Particularly in the case of judicial appointments, achieving agreement among the delegates required a delicate balance to be struck between competing interests at the convention. Smaller states, for example, tended to favor greater senatorial control while representatives from the larger states sought enhanced executive authority through presidential appointment. Complicating the cleavage between small and large was the fundamental issue of where the center of power would be in the new national government; fearful of monarchy, some at the convention sought legislative dominance while others, extolling the virtue of efficiency, called for executive supremacy. Throughout the summer of 1787, the procedures for the appointment of judges and officers of the United States were the subject of spirited debate. The eventual compromise of presidential appointment joined with the advice and consent of the Senate only emerged from the Committee on Postponed Matters in the waning days of the convention. The product of a rather hasty trade-off among sharply held divergent views, the language and history of the appointments clause leave indefinite the precise nature of the role of the Senate in the appointment and confirmation process. The net result is that, although the phrase "advice and consent" has roots deep in British history, in the American context its interpretation has been shaped by the reality of contemporary politics rather than history or constitutional construction.

alexander hamilton, for example, in the federalist, advocated limiting the role of the Senate in the confirmation process to guarding against presidential appointment of "unfit characters." Whatever the constitutional merits of this position, Hamilton's preference quickly proved to be politically unworkable. By the early nineteenth century, the development of a full-fledged party system made the confirmation process, particularly in the case of federal judges, a contentious and often highly partisan affair. During this era senators were selected by state legislatures, and the typical senator was a state party leader sent to the Senate with the task of funneling federal patronage back to the local party organization. Federal judgeships quickly became part of the patronage package and the successful confirmation of these judges, regardless of individual merit, routinely hinged almost exclusively on the approval of home-state senators. The only indication of Senate deference to presidential prerogative was in the confirmation of cabinet-level appointments. Generally speaking, this was an era of congressional dominance and the Senate had the political autonomy to challenge a wide array of presidential appointments on a variety of partisan and ideological grounds.

During the initial decades of the twentieth century, a series of Progressive-era reforms—including the development of the direct primary, the introduction of nonpartisan local elections, and the passage of the seventeenth amendment providing for the direct election of senators—produced weakened party control and organization in the Senate. By the time of the new deal, the center of influence and power at the national level had shifted from the legislative to the executive branch. The Senate began a period of relative quietude in which widely accepted norms of behavior worked to check the power and independence of individual senators and enhanced the authority and prestige of a few key Senate leaders. At mid-century, the Senate was a conservative, hierarchical, closed institution in which individual senators were content to concentrate on committee assignments and legislative work. Few senators sought media attention and there was little incentive for the average senator to challenge leadership decisions. In such an environment the confirmation process was a highly predictable, low-key, frequently invisible exercise in which a President, having secured the consent of a few key Senate leaders to any nomination, could be reasonably confident of success. Presidential appointment of supreme court justices provided a ready example; from the turn of the century to 1968 the Senate confirmed all but one nominee to the Court.

The modern era of the Senate confirmation process begins in the late 1960s with the protracted hearings in the senate judiciary committee over the nomination of thurgood marshall to the Supreme Court and the full Senate's failure to confirm abe fortas as chief justice in 1968. It is a process that is frequently nasty, brutish, and not particularly short. It is, in fact, a thoroughly democratic process, resembling at times a modern electoral campaign in which powerful interests employ sophisticated media techniques to mobilize public support or opposition. Senate proceedings, both in committee and on the floor, are often contentious and protracted, with the ultimate outcome being anything but predictable. One explanation for this development is the transformation of the modern Senate from an inner-directed, stable, hierarchical institution to a more fluid body populated by senators who are motivated to seek power and influence through national media exposure, unhampered by constraining norms. Contested, highly visible confirmation proceedings suit the public style of contemporary senators. With Senate leadership exercising few, if any, controls over the behavior of the members, the President is forced to negotiate with one hundred independent contractors in order to find the votes to secure confirmation. In the case of judicial appointments, this task is made even more formidable because the judicial activism of the modern era has been marked by a willingness on the part of the federal courts to expand the range of litigants permitted access to the federal courts and to subject a wide sweep of public and private disputes to judicial intervention. This expansion of judicial power has made the question of who sits on the federal bench a matter of grave concern to diverse and powerful interests and makes a contentious confirmation process even more likely.

In the final analysis, a more contentious confirmation process simply reflects a general trend in modern American politics. Institutional combat through mechanisms such as congressional investigations, independent counsels, criminal prosecutions, and media revelations increasingly have come to supplant elections as the means by which opposing political forces vie for influence, power, and control. Confirmation proceedings provide a ready opportunity for political groups to embarrass opposing interests, to impede policy implementation, and to weaken the executive branch by denying the President an expeditious route to filling important posts. As long as elections in the United States fail to define who will and who will not exercise political control, contentious confirmation proceedings for both executive and judicial appointments are ever more likely to be the rule rather than the exception.

Mark Silverstein
(2000)

(see also: Bork Nomination; Clarence Thomas.)

Bibliography

Abraham, Henry J. 1992 Justices and Presidents: A Political History of Appointments to the Supreme Court, 3rd ed. New York: Oxford University Press.

Ginsberg, Benjamin and Shefter, Martin 1998 Politics by Other Means, 2nd ed. New York: W. W. Norton & Co.

Silverstein, Mark 1994 Judicious Choices: The New Politics of Supreme Court Confirmations. New York: W. W. Norton & Co.

Twentieth Century Fund 1996 Obstacle Course: The Report of the Twentieth Century Fund Force on the Presidential Appointment Process. New York: Twentieth Century Fund.