Bench Memos

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The Perennial Publius, part 76


It is clear from what Hamilton said about the Senate’s “advice and consent” role in the treaty power that he regards its “advice” as wholly nonbinding–only as forceful in its effect on the executive’s actions as the Senate’s power of “consent” can make it.  In Federalist No. 76, he considers the second appearance of that “advice and consent” language in the Constitution (also in Art. II, § 2, cl. 2), this time in connection with the president’s power to nominate and appoint executive and judicial officers.  It is telling that the president is said by the Constitution to have a unilateral power to “nominate,” with the Senate’s “advice and consent” entering the picture thereafter, on the way to a conclusive appointment of any particular officer.  (For many Senate-confirmed officers not serving in the capital today, such as U.S. attorneys and distict court judges, a de facto nomination by senators, at least of the president’s party, has seemingly turned this language on its head–or is this simply a vigorous form of constitutional “advice”?)

Hamilton seems to be thinking here mostly about the appointment of executive officers, not judges (the judicial branch being separately treated beginning in No. 78).  Thus it is a little surprising that he does not give one of the most obvious reasons for lodging the appointment power primarily in the president–namely, that inasmuch as the officers in question will be his auxiliaries, carrying out his policies and his understanding of the laws made by Congress, the president must not be saddled with subordinates not of his choosing.  As we will see still more pointedly when we come to the next essay, Hamilton to some extent harbored an ideal of neutral public administration, believing, as he says here in No. 76, that “it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negociations.”

But the line just quoted forms part of Hamilton’s argument here that the appointment power must not be lodged exclusively in a legislative assembly.  If we go down that path, “we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly.”  By contrast, we can expect a president’s “sole and undivided responsibility” for nominations to “beget a livelier sense of duty and a more exact regard to reputation.”  On him alone rests the choice of occupants for high office, and as we know from Hamilton’s previous arguments, the virtue of unity is its inducement to virtue.

So where does the Senate’s role enter the picture?  It is, says Hamilton, “an excellent check upon a spirit of favoritism,” aimed at “preventing the appointment of unfit characters from state prejudice, from family connection, from personal attachment, or from a view to popularity.”  An excellent check it may be, but it is far from a perfect one, as a glance at any number of presidential cabinets will reveal.  How much worse would things be without this check?

Yet the Senate is never a chooser itself, only having the power to say yea or nay to the “decider” who is the president:

The person ultimately appointed must be the object of [the president's] 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 . . .

It would be a rare event when senators are certain that the next nomination will be better than the one before them.  But it happens.  As I said, Hamilton seems to be thinking here mostly of executive appointments.  But turn to the judiciary and the point is the same.  In 1987, liberals could hardly think of a worse Supreme Court nominee, from their perspective, than Robert Bork.  And in 2005, conservatives began rapidly to think they could certainly get a better one than Harriet Miers.  Under these circumstances, while the president controls the ground on which debate occurs, he is likely to lose some control of the eventual outcome.

(For explanation of this recurring feature, see here.)


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