Policy Review Banner

The Confirmation Process We Deserve

Friday, June 1, 2001

Michael J. Gerhardt.
The Federal Appointments Process: A Constitutional and Historical Analysis. Duke University Press.
416 pages. $37.95.

In the end, they (almost) all made it. Despite all the speculation and the saber rattling, President George W. Bush essentially got the Cabinet he wanted. Bush’s success is, from one angle, surprising. He emerged victorious from one of the most unusual, lengthy, and contentious elections in American history. He is one of the very few presidents to have received less than a plurality of the popular vote, and he won by only the slimmest of electoral vote margins. Though the electoral contest was resolved in Bush’s favor, many of his opponents continue to view his victory as illegitimate. At the same time, the president’s party lost seats in the Senate. Extraordinarily, Republicans claimed control of the Senate only by virtue of their holding the vice presidency, the constitutionally designated presiding officer of the upper chamber of Congress. During the post-election struggle, there were numerous suggestions that the president should create a “coalition” Cabinet, yet Bush made only the most minimal gesture toward bipartisanship in his Cabinet selections. On its face, this does not seem like the setting for presidential success.

Nonetheless, the president succeeded in winning Senate approval for his choices of the individuals to manage the government. It would have been remarkable only if he had not. Statistically, it is even more rare for Cabinet-level appointments to be rejected by the Senate than for presidents to be elected without winning the popular vote. Four of the 43 presidents, or 9 percent, failed to win the popular vote. The Senate has only formally rejected nine of the over 700 such nominations, or 1 percent. Such statistics are somewhat misleading. A significant number of nominations failed without ever reaching a Senate vote. As Linda Chavez discovered, presidents are more likely to drop a troubled nomination than wait for the Senate to act. Even so, presidents can expect to make the Cabinet their own.

This is not to say that the appointment and confirmation process is an easy one. Presidents must exercise care in their choices in order to avoid later embarrassment. As John Ashcroft and many others can attest, the confirmation process can be a brutal one even for the successful nominee. For judicial nominees, especially nominees to the Supreme Court, the chances of confirmation are not nearly so good. More than a sixth of the presidential choices for the Supreme Court have failed to win Senate approval. In recent years, the politics of appointments and confirmation seems to have become particularly bitter. The polarizing defeat of President Ronald Reagan’s 1987 nomination of Judge Robert Bork to the Supreme Court has been taken by some as emblematic of everything that is wrong with the current process.

With The Federal Appointments Process, Michael J. Gerhardt has provided the most comprehensive analysis of the politics of appointment and confirmation since the 1953 publication of the classic The Advice and Consent of the Senate by the Berkeley political scientist Joseph Harris. Unfortunately, since the time Harris wrote, such comprehensive studies have gone out of fashion. Recent confirmation battles have motivated a number of targeted commentaries advocating reform, but no general analyses that can provide a broader perspective on the appointments process. Whereas such recent works have “generally failed to provide lasting insights,” Gerhardt here sets out “to offer a different way of thinking about the federal appointments process, one that entails focusing on and illuminating the historical patterns and practices in the process.”

Michael Gerhardt is particularly well positioned to offer such a study. A professor of law at William and Mary, he worked as a consultant to the Clinton transition and with the White House in support of the confirmation of Justice Stephen Breyer. Gerhardt is one of the few with bona fide scholarly credentials on federal impeachments (a second edition of his first book, The Federal Impeachment Process, was recently published). As a result, he was able to get a close look at the Clinton impeachment as the only joint witness to testify on impeachable offenses before the House Judiciary Committee and an expert commentator for cnn. There is a natural connection between the study of impeachments and appointments. Though the former are far more unusual, they represent the constitutional obverse of the appointments process. Gerhardt is one of the few constitutional scholars to focus attention on government officials other than judges and on the structural features of the political system rather than individual rights. In his hands, political analysis is a natural extension of constitutional analysis, and this book draws as much on political science and history as on traditional legal scholarship.

From a constitutional perspective, the appointments process raises some interesting issues. Most directly, it calls attention to the political implications of constitutional design. The structure of the appointments process affects the kinds of individuals who will staff the government and the quality of the government that the constitutional system creates. The constitutional rules governing appointments also help determine the relative political power of those who control the appointments. The appointments process, like the impeachment process, also gives a different perspective on the workings of constitutionalism. Constitutional phrases such as “advice and consent” and “high crimes and misdemeanors” are unlikely to be regarded as among the document’s majestic generalities. Nonetheless, those bits of text provide only limited guidance to those who must implement the constitutional directives. The plain terms of the Constitution are importantly supplemented by an accumulated history of practices and norms that help give substantive content to the constitutional form.

In approaching the relationship between formal text and historical practice, Gerhardt connects his analysis to the historical institutionalist work in political science. As he observes, “historical institutionalism integrates history and institutional analysis with an appreciation of the strategies constitutional actors use to cultivate or develop legal and other norms to protect their respective prerogatives and to achieve their desired objectives.” Political actors operate within a multi-layered institutional context that guides and constrains their choices, and some of those layers are of their own making. In unpacking those layers, Gerhardt avoids falling back on either a traditional constitutional analysis emphasizing the origin and original understandings of the Constitution’s appointment and confirmation process or simple political analysis emphasizing current controversies. He instead draws attention to the historical developments and patterns that relate the early Constitution to modern politics. Though recognizing the importance of the two constitutionally designated actors in the appointments process, the president and the Senate, the book also gives appropriate attention to the other regular and important participants: the nominee, the public and organized interests, and the media.

The origins and basic structure of the appointments process favor presidential dominance, though that has been more evident in the twentieth century than the nineteenth. Though mistrustful of strong executives, the early state experience had already indicated to the Founders that legislative control over the appointment of government officials was unworkable. The scheme adopted in Philadelphia promised, in Madison’s words, to “unite the advantage of responsibility in the Executive with the security afforded in the [Senate] ag[ain]st any incautious or corrupt nominations by the Executive.” As Hamilton noted, the Senate “may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose — they can only ratify or reject the choice he may have made.” This arrangement works to the president’s advantage. The very fact of nomination creates a presumption of qualification and confirmability, forcing opposing senators to bear the burden of demonstrating why a nominee should be rejected. Though the Senate can reject nominees for any reason whatsoever, a determined president with the bully pulpit and the ability to make successive nominations can expect to have a fair degree of success in staffing the government.

The question becomes how determined a president is to press his advantage and how narrowly he defines victory. Few presidents have been more determined, or stubborn, than was Andrew Jackson. The Senate defeated Jackson’s nomination of Roger Taney twice, once for treasury secretary and once for associate justice, before Jackson was able to win confirmation of Taney for chief justice. The Senate defeated Jackson’s nomination of Martin Van Buren to be minister to Great Britain a mere three months after it had confirmed him to be secretary of state, with Vice President John C. Calhoun casting the deciding vote against the president’s nominee. Jackson struck back by selecting Van Buren as his running mate for his reelection campaign, gloating in a letter over the “glorious scene of Mr. Van Buren, once rejected by the Senate, sworn into office by Chief Justice Taney, who [had twice] been rejected by the factious Senate.” Jackson had an unusual taste for combat. Most presidents are willing to be a bit more conciliatory, even as they win more than they lose. Richard Nixon may have been unable to place a Southern conservative on the court (in part because he faced a shallow pool of acceptable candidates), but he did eventually get his strict constructionist in the form of William Rehnquist. Robert Bork proved to be a lightning rod in the Senate, but Anthony Kennedy is a far cry from what the Senate’s Democratic majority would have regarded as the optimal justice. On the other hand, Bill Clinton was notably uninterested in expending political capital on confirmation contests. As a consequence, the Senate had remarkable leeway to affect or block the president’s choices for executive and judicial positions. Bush should be prepared not only for a Senate fight over his judicial nominations, but also for a few defeats. Success in winning confirmation for a justice with a conservative judicial philosophy will depend on the president’s willingness to make judicial philosophy a priority over competing considerations and the administration's willingness and ability to nominate a string of highly qualified judicial conservatives and fight a political war of attrition. In such a contest, the executive has an inherent advantage over the Senate.

E arly in the book, Gerhardt usefully sketches several important changes in the historical context of federal appointments. During an era when parties were viewed with suspicion, the early presidents were cautious about removing holdover executive officials and appointing their own loyalists. Thomas Jefferson, for example, announced a policy of only removing those Federalist appointees whose partisanship seemed so extreme as to interfere with their official duties and ultimately of dividing offices between the two parties in proportion with their share of the vote. By contrast, Andrew Jackson embraced the democratic credo that to the electoral victors go the spoils of office and “rotation in office,” in which government employment would be temporary and officeholders would be rotated out along with the president. Jackson’s own practice was less radical than his theory, but rotation and the “spoils system” soon became the norm. When James Buchanan succeeded fellow Democrat Franklin Pierce in 1856, one observer noted that “Pierce men are hunted down like wild beasts” to make way for Buchanan’s appointments.

Through much of the nineteenth century the appointments process was at the heart of party organization and strength. This proved a burden as well as an opportunity for presidents, as each appointment required a delicate political calculation. The executive strengthened the political parties, but Congress was the heart and head of the parties. Legislators controlled the party nominating conventions that selected the presidents, and senators sat atop the locally based party organizations. Most federal appointments were for local offices, such as customhouses and post offices, and senatorial courtesy, enforced by the Senate’s power of confirmation, meant that individual senators controlled the nominations to those offices.

One aspect in President Andrew Johnson’s impeachment was a fight over whether the president or the Senate would control executive offices. Johnson saved himself from removal by surrendering to Senate demands. President James Garfield seemed to regret leaving the Congress, complaining that “all these years I have been dealing with ideas, and here I am dealing only with persons.” Garfield was one of a series of presidents who did battle with the Senate over control of executive offices, and particularly with Roscoe Conkling, the powerful head of the New York political machine and a Senate faction known as the Stalwarts. When a group of senators went to the White House to protest an appointment, Garfield defiantly declared, “I do not propose to be dictated to.” His defiance came at a price, as he died two weeks after being shot by a disappointed seeker of a consulate to Paris. In classic nineteenth century fashion, the assassin had shouted, “I am a Stalwart and [Vice President Chester] Arthur is now president.” Fortunately, patronage miscalculations were not usually fatal, but it was not until the turn of the century that presidents were able to free themselves from the demands of senators and their claims on executive patronage, what President Grover Cleveland called “the damned, everlasting clatter for office.” Presidential independence was purchased at the expense of party organization, however, as patronage and rotation in office gave way to the civil service. Well over 90 percent of modern presidential nominations are for military officers.

By the Jacksonian period, the Senate had already been transformed from an aristocratic, executive-friendly body into a popularly oriented, relatively independent legislative chamber. The modern Senate is less invested in the vast majority of presidential appointments than was the nineteenth century Senate, but the modern Senate is deeply affected by its own electoral concerns and democratizing reforms. Not long after the Seventeenth Amendment made senators electorally accountable to the people at large, the Senate shifted most of its business, including confirmations, on to the public record and out of closed executive session. About the same time, Calvin Coolidge’s choice for attorney general became the first presidential nominee to appear in person at a Senate confirmation hearing. Organized interests claiming to represent and be able to mobilize the electorate back home have been routine participants in the confirmation process since the early twentieth century. As politics became more volatile and parties even less crucial to electoral success in the 1960s, individual senators became more independent and powerful, further fragmenting the confirmation process. The recent era of divided government, and the increasing ideological polarization of the two parties, has exacerbated the tensions between the two major players in the appointments process. The Bush administration’s decision to remove the American Bar Association from its privileged place in the judicial appointments process is indicative of the political complexities. The ABA once provided Dwight Eisenhower with some “quality control” for lower court appointments and to avoid the perceived cronyism and partisanship of his Democratic predecessors’ selections for the bench. The ABA’s influence has been in decline since the 1970s, however, and the perceived politicization of the aba has made it less useful to either presidents or senators than it once was, especially for Republicans. Although Gerhardt does not give as much attention to these historical developments as he might, his consciousness of them usefully informs his thoughts on reform. Most of the difficulties with the current appointments process have deep roots. They will have to be managed, not eliminated.

T he president’s natural advantage within the appointments process may assure general success, but it does not assure smooth sailing. The constitutional requirement of confirmation creates ready opportunities for the Senate and individual senators to send a message to the president. Presidential nominees may suffer for the prior political sins of unpopular presidents. Presidents may also have to choose their battles. For some presidents — including Jackson, Franklin Roosevelt, and Ronald Reagan — appointments have been central to their agenda and a few heated confirmation struggles have been a price worth paying to alter the course of government. For others, the drain on their limited political resources seems too great to bear and appeasement may become the preferred strategy. Thus, a relatively easy confirmation became a central goal in the judicial selection processes of George Bush and Bill Clinton, sharply limiting the range of presidential discretion in choosing a nominee. Especially in recent years, presidential nominees may also get caught in the middle of a political payback, as partisans look to settle scores from earlier confirmation defeats. Even individual senators can use the confirmation process to extract concessions from presidents on matters both related to and far removed from the subject of the confirmation.

The general presidential success in winning confirmation votes can also obscure the significance of Senate delays in acting on presidential nominations. Long delays are far more likely to kill a nomination than an unsuccessful floor vote. Long delays in confirming appointments can hamper an administration even when confirmation is eventually forthcoming. Quantitative studies suggest that ideological polarization in the Senate may be more significant than divided government itself in obstructing presidential nominations, though the effect is magnified when different parties control the Senate and the White House. The further apart the political extremes in the Senate are from the nominee, and from each other, the more reason they have to drag out the process. Both houses of Congress have become increasingly polarized, and the parties increasingly homogeneous, since the early 1970s. Judicial nominees, who have always been subject to close Senate scrutiny and ideological conflict, may feel the pressure particularly acutely. They are not alone, however, as confirmations have increasingly been contested across a range of nonjudicial appointments, with politically sensitive posts such as the Justice and Interior Departments drawing particular fire.

The generally busier and more individualistic Senate of the modern era allows even small Senate minorities to delay appointments, for example through the practice of allowing individual senators to place indefinite holds on nominations. High-profile nominations can create the most heated confirmation battles, but the visibility of an office generally favors the president. There is greater pressure to fill high-level offices, and public attention necessitates that senators provide more publicly appealing explanations for opposing a nominee. By contrast, low-level appointments with less public visibility and fewer governing responsibilities can be more easily held hostage in the Senate. The longer an administration is in office, the longer the Senate can be expected to delay confirmations and, especially in the case of judges, the greater the chance of outright rejection.

Presidential organization in quickly nominating individuals to fill vacancies and presidential willingness to publicize nominations can be crucial to moving candidates through the process successfully, as President Clinton learned the hard way. Clinton quickly gained a reputation for not caring about appointments, and as a consequence the Senate was emboldened to resist his nominations. During his final years in office, as hostilities between Congress and the president grew and the president’s attention was engaged elsewhere, senatorial confirmation of Clinton’s judicial choices practically shut down. Confirmations only moved forward when, and as long as, the president and the chief justice publicized the standoff. The abbreviated transition period caused by the election controversy is now making itself felt, as George W. Bush is running behind even Bill Clinton’s slow schedule of sending forward nominees to fill executive branch offices. As a consequence, it will require even greater attention and effort to ensure that those nominees are confirmed, and expeditiously.

Gerhardt has produced a serious and valuable book that nicely combines constitutional, historical, and political analysis to shed light on a subject that was in great need of such careful attention. In doing so, he captures the complexity of the process and the sources of our present discontents. He provides a careful analysis of the circumstances and conditions that gave rise to the current appointments process and the considerations and strategies that drive the actors in the process. As Gerhardt notes in conclusion, “reform or significant change is possible only if the major political actors have incentives for modifying the system.” Despite all their complaining, those closest to the process have “a vested interest in the status quo” in part because the current process evolved to accommodate the various and conflicting needs of the many actors who participate in it. Messy confirmation battles are to be expected when a democratic government is combined with serious political disagreements.