The Republican Party, safely in control of both the White House and the Senate, find the Constitutional requirement for Senatorial Advice and Consent by the Senate on Presidential appointments is a dispensable luxury. Why should they put up with the irritating messiness and limitation on their power that the filibuster gives to the minority despised Democrats? When the Republican President nominates a person for high government office, why should the Republican Senate do more than merely rubber-stamp his appointment?
The President has the Right to get the appointees he wants, and every appointee has the Right to get an up-or-down vote by the full Senate. This is what the Constitution says. Right?
No. It says exactly the opposite. The Constitution gives the President only the power to nominate, not appoint, officers requiring the Advice and Consent of the Senate. The Senate, acting as a separate body of government, has the responsibility under the Constitution to deliberate on those the President appoints and either approve or reject them.
Also, the Constitution does not require an up-or-down vote on Presidential nominees. This is pure fiction. What does the Constitution expect of the Senate with regard to the filibuster and to the approval or rejection of Presidential nominees? First, we should consider the filibuster.
What the Constitution Says
The Constitution gives the Senate the power to determine its own rules for deliberation, and it also requires that while the President can nominate individuals to office, the Senate must approve or reject his nominations. The President and the Senate must each act, independently, before an appointment to office occurs. Let’s look at each of those provisions.
Section 5 of Article I of the Constitution states: ” Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. “ Based on this, the filibuster is completely Constitutional as long as the Senate has established it as a rule of the Senate. The argument that the use of the filibuster to prevent the appointment of an individual nominated by the President is unconstitutional is ludicrous.
Since by the Constitution the Senate sets its’ own rules of proceedings, then it is perfectly reasonable to ask what such rules should be expected to do. For this we need to look at what the respective roles the founding fathers intended for the President and the Senate in the appointment of federal officers. First we should look at the power of appointment the Constitution give the President, then look at Alexander Hamilton’s explanation of that provision as stated in “The Federalist No 76.”
Section 2 of Article II of the Constitution states of the President […]he shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he 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: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The key statement is that the President nominates those officers subject to the advice and consent of the Senate. The President does not unilaterally appoint officers unless Congress has specifically given him that power for inferior officers. . Hamilton laid out the reasoning of the writers of the Constitution in the Federalist No 76. Let me summarize:
The Federalist No 76 – The President and the Appointing Power
Since it was recognized that it is impractical to have the people at large appoint officers, the Power of appointment could be vested in one of three ways. Those ways are:
1. in a single man, or
2. in a SELECT assembly of a moderate number; or
3. in a single man, with the concurrence of such an assembly.
Option 1.
Hamilton assumed that most people accept that for the President to appoint the men to fill office will lead to a great probability that the person appointed to fill an office will be a man with at least respectable abilities. Based on this assumption, Hamilton proceeded to ”lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment.”
Giving this power of appointment to a single man makes that man clearly responsible for his resulting appointment, so the single man can be expected to prefer well-qualified a well-qualified person, and to investigate more thoroughly to ensure that his appointees will have those qualifications. He will also be more focused on those qualifications, and less likely to be misled by “…sentiments of friendship and affection.”
Option 2.
Hamilton was more negative when assessing the process of appointing individuals by an assembly of men. He didn’t think it as likely that such a process would result in the choice of well-qualified men. Rather than choosing an individual for his qualifications and merit, the interplay of personalities, like, dislikes and those attachments and animosities found in assemblies would lead to the the result either of a victory gained by one party over the other, or of a compromise between the parties. The first result would cause the needs of the factions in the assembly to be more important than the qualifications of the individual appointed. The second option would result because the winning coalition would ”… turn upon some interested equivalent: "Give us the man we wish for this office, and you shall have the one you wish for that." Neither result is likely to provide the best man for the office.
Option 3.
Given options 1. and 2. above, it is clear that the more likely to result in the appointment of qualified men to office is option 1. Hamilton stated that between those two procedures ”…the President ought solely to have been authorized to make the appointments under the federal government.”
He then goes on the point to option 3. above as preferable to either option 1. or option 2. ” But it 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. This is one of those built-in checks and balances for which the US Constitution is justly lauded.
Hamilton says that when the President nominates an individual to fill an office, he is solely responsible for his judgment, just as if he appointed that person directly. He will undertake all the efforts in nominating an individual just as he would have if he directly appointed him. This avoids the problems of appointment by an assembly which result from either a victory of one side over the toner or of a compromise between the parties. So nomination by the President gives the focus on the qualities of the individual which is lost in an appointment by an assembly.
Of course, the assembly might overrule the Presidents’ nomination. Without that option, the Senate has no Advice and Consent role in the appointment of officers. The idea that the President has the right expect the Senate to approve every nomination makes a mockery of the Constitutional provision of Senatorial Advice and Consent.
If the assembly overrules the Presidents’ nomination, it cannot be as part of a tradeoff between factions in the assembly since the assembly cannot choose who it appoints. Such a trade-off in the Senate is impossible if the Senators cannot themselves nominate the next individuals to be appointed to office. At the same time, the requirement that the Senate approve or reject the appointment of an individual for office should act to keep the President from appointing unfit characters for whatever personal reasons he might have.
Hamilton also considered the possibility that the President might use his power to nominate individuals for office to influence the Senate to give him what he wanted. He then discussed ways an independent Senate is established within the Constitution and how the independent action of the Senate will improve the nomination and appointment process.
The fact that the Senate would hold hearings on such nominations allows the more virtuous and less venal of the politicians an opportunity to pressure politicians to act for the nation rather than for personal gain. Hamilton felt that while the President could influence [buy off] some individuals in the Senate he would not likely be able to ”purchase the integrity of the whole body” Hamilton also believed that since the Constitution prohibits the President from creating an office to which a Senator could be appointed or increase the payments to a legislator while he is a Senator, then the President had few ways to influence the members of the Senate in their deliberations. So, within the limitations of 18th century government, Hamilton believed that the Constitution protected an independent Senate from control by the President.
Since the Constitution did not consider the possibility of political parties, Senators were appointed by the legislatures of the respective states rather than by the mobs, and various methods a President might have used to buy off a significant block of Senators, Hamilton assumed that the Senate would be free from domination by the President. It should be quite clear that Hamilton did not for a moment entertain the idea that a President deserved to have his appointees approved. Such a practice makes a mockery of the Constitutional provision that the President merely nominates people for office, to be accepted or rejected by an independent Senate acting in its Constitutional role of providing advice and consent.
Conclusion
The idea that because the filibuster is not mentioned in the Constitution makes it unconstitutional is ludicrous. The Senate has the Constitutional power to set its own rules of deliberation and the filibuster has been one of those rules since the beginning. Nothing in the history of the filibuster has ever even hinted that it was not appropriate for use in the Constitutional Advice and Consent role of the Senate. The filibuster has been a part of the Senate rules since the beginning of the Senate as a way for a significant minority to force the body to give it a realistic hearing.
It is clear that Hamilton felt the process of nominating a candidate and then having the Senate approve or reject such candidates was the best method of getting qualified candidates appointed to offices. It is also clear that Hamilton saw the Senate as acting as a separate and independent deliberative body in its Constitutionally established power of advice and consent on individuals nominated for office by the President.
It is abundantly clear from Federalist No 76 that he rejected the idea that the President had the right to appoint high-ranking individuals to office. Instead the President was given only the power to nominate candidates for office, and the Senate was expected to act on those nominations as an independent body. For the Senate to give the President any nominee he asks for as an appointee guts the Advice and Consent provision of the Constitution. The Senate is fulfilling its constitutional role only if it retains its independence from control by the President.
It is this Senatorial independence that the Republican are working to end. Hamilton mentioned the prohibitions in the Constitution that were intended to keep the Senate from being influenced by the President in its deliberations. But the Founding Fathers made no provision for political parties in the Constitution, and they could not have imagined the many ways a 21st century President could use his office to influence individual Senators.
It is in fact the Republicans who are attempting to apply unconstitutional procedures when they allow the President to directly appoint government officers with nothing more than a Senatorial rubber stamp. This is not what the founding fathers intended.
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