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....
This clause contemplates three sequential acts for the appointment of principal officers—the nomination of the president, the advice and consent of the Senate, and the appointment of the official by the president.
The requirements of this part of Article II, Section 2, Clause 2, apply to principal officers, in contrast to inferior officers, whose appointments are addressed in the next part (Inferior Officers). Although the Senate must confirm principal officers, including ambassadors and Supreme Court justices, Congress may still require that any inferior officers whose office is “established by law” also be confirmed by the Senate.
There are a number of possibilities why the Framers chose the Senate (rather than Congress as a whole, or nobody) as the body that must approve the nominations of principal officers. Before the Revolution, many in the colonies had insisted on a “governor’s council’ to monitor and approve the royal governor’s appointments, and some Framers may have seen the Senate as playing an analogous role. In addition, the small states designedly had proportionately greater power in the Senate, and could serve as a check on a president from a large state who might otherwise be able to make appointments of persons from his own state.
The important questions for principal officers and their confirmation are, first, whether the president has plenary power of nomination or whether the Constitution limits this power by requiring the president to seek pre-nomination “advice;” second, whether the president must nominate only those who meet qualifications set by Congress; and, third, whether the Senate has plenary power to reject nominees or whether that power is circumscribed by some standard.
Both the debates among the Framers and subsequent practice confirm that the president has plenary power to nominate. He is not obliged to take advice from the Senate on the identity of those whom he will nominate. On its part, the Senate possesses the plenary authority to reject or confirm the nominee, although its weaker structural position means that it is likely to confirm most nominees, absent compelling reasons to reject them.
The very grammar of the clause is telling: the act of nomination is separated from the act of appointment by a comma and a conjunction. Only the latter act is qualified by the phrase “advice and consent.” Furthermore, it is not at all anomalous to use the word advice with respect to the action of the Senate in confirming an appointment. The Senate’s consent is advisory because confirmation does not bind the president actually to appoint the confirmed nominee. Instead, after receiving the Senate’s advice and consent, the president may deliberate again before appointing the nominee. After the president formally appoints, the appointee may, as was frequent in the early republic, then refuse the appointment, in which case the appointment is regarded as never having been made.
The principal concern of the Framers regarding the Appointments Clause, as in many of the other separation of powers provisions of the Constitution, was to ensure accountability while avoiding tyranny. Hence, following the suggestion of Nathaniel Gorham of Massachusetts and the example of the Massachusetts constitution drafted by John Adams, the Framers gave the power of nomination to the president so that the initiative of choice would be the president’s responsibility, but provided the check of advice and consent to forestall the possibility of abuse of this power. Gouverneur Morris described the advantages of this multistage process: “As the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security.”
The Federalist similarly recognizes the power of nomination to be an exclusively presidential prerogative. In fact, in The Federalist No. 76, Alexander Hamilton answered critics who would have preferred the whole power of appointment to be lodged in the president by asserting that the assignment of the power of nomination to the president alone assures sufficient accountability:
[I]t is easy to show that every advantage to be expected from such an arrangement would, in substance, be derived from the power of nomination which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided. In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment.
Chief Justice John Marshall in Marbury v. Madison (1803), Justice Joseph Story in his Commentaries on the Constitution of the United States (1833), and the modern Supreme Court in Edmond v. United States (1997) all confirm that understanding.
Congress establishes offices, and the president, at least in regard to principal officers, nominates office holders. Under the Necessary and Proper Clause (Article I, Section 8, Clause 18), Congress has often established qualifications for those who can serve in the offices it has created, thereby limiting the range of those the president can nominate. Andrew Jackson protested that such acts were an unconstitutional infringement of his appointing power, but Congress has continued the practice to this day. The Supreme Court has held that Congress may not provide itself with the power to make appointments, Buckley v. Valeo (1976), but it is unclear how far Congress may go in setting qualifications for principal officers without contravening the Framers’ interest in assuring the president’s accountability for the initial choice. President James Monroe declared that Congress had no right to intrude upon the president’s appointing power. In Myers v. United States (1926), Chief Justice William Howard Taft declared that the qualifications set by Congress may not “so limit selection and so trench upon executive choice as to be in effect legislative designation.” In Public Citizen v. U.S. Department of Justice (1989), Justice Anthony Kennedy, concurring, opined that the president’s appointing power was exclusive, and that only the Incompatibility Clause (Article I, Section 6, Clause 2) limits the range of his choice.
There are a number of possibilities. Perhaps Congress may set whatever limited standards it wants to. Or, it may be that it may not set standards that are too limited (such as limiting the nomination to one of three approved by the House). Perhaps the legislative branch may not impose any standards, for that would allow the House to intrude on the Senate’s confirmation process. And, even if the Senate confirms one who does not meet the standards, it may be that that would be a political question unreviewable by the courts. The Court, however, has yet to make a definitive statement on the issue.
Another related question is whether a new appointment is necessary if Congress expands the duties of an office after an appointment takes place. In Weiss v. United States (1994), the Supreme Court held that military officers who served as judges in courts-martial did not need a separate act of appointment and Senate approval. The Court declared that serving as military judge was not “so different” from the duties of a military officer that a separate appointment was necessary. In fact, the Court went so far as to say that being a military judge was “germane” to being a military officer. Nor could the Court find that Congress had authorized a new appointment.
Closely related to the Framers’ interest in assuring accountability was their interest in avoiding an appointment that would be the result of secret deals. In defending the clause’s structure of presidential nomination and public confirmation, Hamilton in The Federalist No. 77 contrasted it with the appointments process by a multimember council in his own state of New York. Such a council acting in secret would be “a conclave in which cabal and intrigue will have their full scope. . . . [T]he desire of mutual gratification will beget a scandalous bartering of votes and bargaining for places.” Delegates to the Constitutional Convention had expressed similar concerns. If the Senate had a formal pre-nomination advisory role, the Senate leaders and the president might well be tempted to make a deal that would serve their parochial interests and then be insulated from all but pro forma scrutiny. Other contemporaneous commentary on the Appointments Clause repudiates any special constitutional pre-nomination role for the Senate. James Iredell, a leading proponent of ratification in North Carolina and subsequently a Supreme Court justice, observed at his state’s ratifying convention: “As to offices, the Senate has no other influence but a restraint on improper appointments. The President proposes such a man for such an office. The Senate has to consider upon it. If they think him improper, the President must nominate another, whose appointment ultimately again depends upon the Senate.”
The practice of the first president and Senate supported the construction of the Appointments Clause that reserves the act of nomination exclusively to the president. In requesting confirmation of his first nominee, President Washington sent the Senate this message: “I nominate William Short, Esquire, and request your advice on the propriety of appointing him.” The Senate then notified the president of Short’s confirmation, which showed that they too regarded “advice” as a post-nomination rather than a pre-nomination function: “Resolved, that the President of the United States be informed, that the Senate advise and consent to his appointment of William Short Esquire. . . .” The Senate has continued to use this formulation to the present day. Washington wrote in his diary that Thomas Jefferson and John Jay agreed with him that the Senate’s powers “extend no farther than to an approbation or disapprobation of the person nominated by the President, all the rest being Executive and vested in the President by the Constitution.” Washington’s construction of the Appointments Clause has been embraced by his successors. Some presidents have consulted with key Senators and a few with the Senate leadership, but they have done so out of comity or political prudence and never with the understanding that they were constitutionally obliged to do so. A law setting qualifications would not only invade the power of the president, it would also undermine the authority of the Senate as the sole authority to decide whether a principal officer should be confirmed.
The other principal controversy arising from the Appointments Clause has concerned the authority of the Senate to reject nominees. The Senate has independent authority in that it may constitutionally refuse to confirm a nominee for any reason. While ideology and jurisprudential “point of view” were not among the kinds of concerns listed by the Framers as justifying the requirement of advice and consent, nothing in the text of the clause appears to limit the kind of considerations the Senate can take up. It is thus reasonable to infer that the Framers located the process of advice and consent in the Senate as a check to prevent the president from appointing people who have unsound principles as well as blemished characters. As the president has complete discretion in the use of his veto power, the Senate has complete and final discretion in whether to accept or approve a nomination.
Given that the Senate was not to exercise choice itself, it appeared to Alexander Hamilton in The Federalist No. 76 that a nominee should be rejected only for “special and strong reasons.” The president’s power of repeated nomination provides a check on the Senate’s ability to reject a nominee on something less than an articulable weighty reason. In fact, Hamilton argued that if the Senate fails to make that case and rejects the nominee for a pretextual reason, the president would generally be in a position to find a second candidate without these putative defects who generally shares the president’s point of view. It is rare, however, for a president to renominate a person to a position once the Senate has declined to accept the nomination.
The president does possess an advantage in the unitary nature of the executive office as compared to the diffuse and variegated nature of the Senate—even when it is controlled by the opposition party. The president is a single individual, whereas the Senate is a body composed of many individuals with a wide range of views, including members with views like those of the president. When the president has a substantial basis of party support in the Senate and thus a nucleus of probable supporters, he has leverage for confirmation. Thus, the image of a divided government as a government in any sense equally divided when it comes to an analysis of the Appointments Clause and the confirmation process is a fundamentally false image, as George Mason recognized at the Philadelphia convention: “Notwithstanding the form of the proposition by which the appointment seemed to be divided between the Executive & Senate, the appointment was substantially vested in the former alone.” Moreover, the president’s advantage in the process is a considered feature of the Framers’ design: they knew how to create a process by which the power of the executive and the Senate would be rendered more equal. Unlike the approval of treaties, it does not take a supermajority to approve a presidential nominee.
Because the president has the initiative of choice in appointments to the executive branch and the judiciary, the views of his prospective appointees are more likely to become a presidential campaign issue than in senatorial campaigns. Since he possesses the greatest discretion, the political process fastens upon him the greatest accountability. However, when a substantial number of Senators assert that there are strong and compelling political reasons to reject a nominee (as opposed to rejecting one because of a flawed character), the Constitution’s structure ensures a confirmation battle. As such, the Constitution contains mechanisms designed to contain conflict within the republican process in order to protect against the degeneration of the republic’s original ideals and thus ensure the republic’s stability. The Appointments Clause is a prime example of such a mechanism. It structures the confirmation process so that when two of the republic’s national governing branches are in fundamental disagreement, there will be a struggle to persuade the people of the correctness of their respective positions. In the case of a struggle over constitutional interpretation as in a Supreme Court nomination, as has been more frequent in recent decades, the public will be forced to consider the first principles of the republic—in this case, the role of the judiciary and the proper method of interpreting its governing document. Citizens will thus vicariously enjoy some measure of the experience of the framing of the Constitution, thus contributing to the republic’s self-regeneration.
Michael Gerhardt, The Federal Appointments Process: A Constitutional and Historical Analysis (2000)
John O. McGinnis, The President, the Senate, the Constitution and the Confirmation Process: A Reply to Professors Strauss and Sunstein, 71 Tex. L. Rev. 633 (1993)
David A. Strauss & Cass R. Sunstein, The Senate, the Constitution and the Confirmation Process, 101 Yale L.J. 1491 (1993)
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
Myers v. United States, 272 U.S. 52 (1926)
Buckley v. Valeo, 424 U.S. 1 (1976)
Morrison v. Olson, 487 U.S. 654 (1988)
Public Citizen v. U.S. Department of Justice, 491 U.S. 440 (1989)
Weiss v. United States, 510 U.S. 163 (1994)
Edmond v. United States, 520 U.S. 651 (1997)