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Advice and Consent: What the Constitution Says

July 19, 2005 10 min read

John McGinnis

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Editor's Note: Between various presidential nominations now bottled up in the U.S. Senate, and now the intense focus on a nomination to the United States Supreme Court, there have been numerous musings about presidential nominations, the advice and consent of the Senate, and the appointment of judges of the Supreme Court and other officers of the United States. This essay by constitutional scholar John McGinnis of Northwestern University School of Law considers in close detail what the Constitution actually says and means on this matter. Looking closely at the text as well as the debate in the Constitutional Convention, McGinnis establishes that "the President has plenary power to nominate" and that the record "repudiates any special constitutional prenomination role for the Senate." At the same time, the essay also concludes that the Senate "has complete and final discretion in whether to accept or approve a nomination."

This essay is part of The Heritage Guide to the Constitution (forthcoming), a line-by-line analysis of the original meaning of each clause of the United States Constitution, edited by David Forte and Matthew Spalding.

Appointments Clause

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. . .

(Article II, Section 2, Clause 2)

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. This clause applies to principal officers in contradistinction to inferior officers, whose appointment is addressed in the next portion of the clause. Although the Senate must confirm principal officers, including Ambassadors and Supreme Court Justices, Congress may choose to require that any officers whose office "is established by law" be confirmed by the Senate, whether they be inferior or not.

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 prenomination 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 he will nominate, nor does the Congress have authority to set qualifications for principal officers. 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 to commission and empower the confirmed nominee. Instead, after receiving the Senate's advice and consent, the President may deliberate again before appointing the nominee.

The purpose of dividing the act of nomination from that of appointment also refutes the permissibility of any statutory restriction on the individuals the President may nominate. 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 New Hampshire 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 a single individual'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 understands the power of nomination to be an exclusively presidential prerogative. In fact, 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. The Federalist No. 76.

Chief Justice John Marshall in Marbury v. Madison, Justice Joseph Story in his Commentaries on the Constitution of the United States, 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 8), 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 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. Dept. 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. The Court, however, has yet to make a definitive statement on the issue.

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 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 prenomination 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 prenomination 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 postnomination rather than a prenomination 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 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 that 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: "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 the 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, 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.

Suggestions for Further Research

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)