Constitutional Provisions regarding the Appointment Power
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 . . . .” Art. II, § 2, cl. 2, emphasis added.
“[B]ut 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.” Ibid.
In addition, the President “shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Ibid. (emphasis added).
I observed in Federalist 68 that “the true test of a good government is its aptitude and tendency to produce a good administration.”
If the justness of this observation be admitted, the mode of appointing the officers of the United States set forth in the foregoing clauses is particularly commendable.
It is not easy to conceive of a plan better calculated than this to promote a judicious choice of individuals for filling the offices of the Federal government, and upon which it must essentially depend for the character of its administration.
Vesting the Appointment Power in the People Collectively Was Rejected as Impractical
Some consideration was given to vesting the appointment power in the People collectively, who from their number and dispersed situation are less susceptible to the regulation of their movements by the systematic spirit of cabal and intrigue that can effect any assembly or body of individuals.
This option, though, was readily admitted to be impracticable; as waiving every other consideration, it would leave the People little time to do anything else.
It was thus decided the power to appoint federal officers be delegated to their elected representatives.
The Three Ways to Exercise the Appointment Power
It was agreed on all hands that the power of appointment could be vested in three ways:
(1) in a single individual,
(2) in a select assembly of a moderate number, or
(3) in a single individual, with the concurrence of such an assembly.
An Individual Is Better Suited than a Committee to Select Officers
Those who have themselves reflected upon the subject (or who have attended to the observations made in other parts of these Papers) in relation to the appointment of the President – I presume will agree to the position, that there would always be great probability of having the place supplied by an individual of at least respectable abilities.
On this premise, I proceed to lay it down as a rule – that one individual of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of individuals of equal or perhaps even of superior discernment.
It was agreed on all hands that the power of appointment could be vested in three ways: (1) in a single individual, (2) in a select assembly of a moderate number, or (3) in a single individual, with the concurrence of such an assembly.
The sole and undivided responsibility of one individual will naturally beget a livelier sense of duty and a more exact regard to reputation.
A single individual will – on this account – feel under stronger obligations – and be more interested to investigate with care the qualities requisite to the stations to be filled – and thus to prefer with impartiality the persons who may have the fairest pretensions.
A single individual will have fewer personal attachments to gratify than a body of individuals – each of whom may reasonably be supposed to have an equal number of attachments.
The President will therefore be much less liable to be misled by the sentiments of friendship and of affection.
A single individual – directed by a single understanding – will be less likely to be distracted by that diversity of views, feelings, and interests which frequently warp the resolutions of a collective body.
There is nothing so apt to agitate the passions of mankind as personal considerations – whether they relate to ourselves or to others who are to be the objects of our choice or preference.
Hence in every exercise of the power of appointing to offices by an assembly of persons, we must expect to see a full display of all their private and party likes and dislikes, partialities and antipathies, attachments and animosities felt by those who compose the assembly.
A single individual – directed by a single understanding – will be less likely to be distracted by that diversity of views, feelings, and interests which frequently warp the resolutions of a collective body.
Nomination by Committee Results in Party Battle and Compromise
The collective choice to be made under such circumstances will be the result either of a victory gained by one party over the other, or a compromise between the parties.
In either case, the intrinsic merit of the candidate will too often be obscured.
In the case of a party victory – the qualifications will be those best adapted to uniting the votes of the majority party – rather than those which fit the person for the station.
In a party compromise, the coalition will commonly turn upon the trade of an equivalent appointment: “Give us the person we wish for this office, and you shall have the one you wish for that.”
This will be the usual condition of the bargain.
Whether the appointment results from a party victory or compromise, rarely will the advancement of the public service be the primary object.
All the Advantages of Vesting the Appointment Power in the President Alone Are Retained Even Though Senate Approval Is Required
Some suggested the President ought solely to have the power of appointments.
But it is easy to show that every advantage to be expected from such an arrangement would be derived from the power of nomination alone, while several disadvantages attending the absolute power of appointment in the hands of a single individual would be avoided.
Even if the President’s nominee fails to obtain Senate approval, this would only make place for another nomination by the President. The person ultimately appointed must be the object of presidential preference, though perhaps not in the first degree.
In the act of nomination, only the President’s judgment would be exercised – and having the sole duty to point out the person who should fill an office – the exercise of responsibility would be as complete as if making the final appointment.
In this view, there is no difference between nominating and appointing. The same motives influencing a proper discharge of duty in one case would exist in the other.
And since no one can be appointed but on the President’s nomination, every person who might be appointed would actually be the President’s choice.
Even if the President’s nominee fails to obtain Senate approval, this would only make place for another nomination by the President.
The person ultimately appointed must be the object of presidential preference, though perhaps not in the first degree.
It is also improbable that the President’s nomination would often be overruled.
The Senate will not be tempted to reject the one proposed by any preference they might feel to another because they could not assure themselves that the person they might wish for would be brought forward by a second or by any subsequent nomination.
Dissenting Senators could not even be certain that a future nomination would present a candidate in any degree more acceptable to them.
Finally – as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the President – it unlikely their sanction would often be refused – except where there were special and strong reasons for the refusal.
Senate Approval Will Check Presidential Favoritism and Bias
Why then require the co-operation of the Senate?
The answer is the necessity of their concurrence will have a powerful (though generally silent) operation.
Senate concurrence will be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters due to bias in favor of one or more States, or from family connection, personal attachment, or even a view to popularity.
Senate approval also provides an efficacious source of stability in the administration.
It is readily apparent that an individual who alone controlled the disposition of offices would be governed much more by personal inclinations and interests than when bound to submit the propriety of the choice to the discussion and determination of a different and independent body – and that body is an entire branch of the legislature.
The possibility of rejection would be a strong motive to care in proposing.
Further, the danger to the President’s own reputation and political existence from betraying a spirit of favoritism or an unbecoming pursuit of popularity to the observation of the Senate – a body whose opinion would have great weight in forming that public opinion – could not fail to operate as a barrier to favoritism or popularity.
A President would be both ashamed and afraid to bring forward for the most distinguished or lucrative stations candidates who had no other merit than that of (1) coming from the same State to which the President belonged, (2) being in some way or other personally allied to the President, or (3) possessing the necessary insignificance and pliancy to render them the obsequious instruments of the President’s pleasure.
It is readily apparent that an individual who alone controlled the disposition of offices would be governed much more by personal inclinations and interests than when bound to submit the propriety of the choice to the discussion and determination of a different and independent body – and that body is an entire branch of the legislature.
Fears that a President Will Overpower the Senate Are Unfounded
Some suggested the President – by the influence of the power of nomination – may secure Senate approval of the nominee.
This argument rests on the erroneous supposition of universal venality in human nature. It is little less an error in political reasoning than the supposition of universal rectitude.
The institution of delegated power implies there is a portion of virtue and honor among mankind which gives a reasonable foundation of confidence in upright behavior.
Experience justifies the theory. It has been found to exist in the most corrupt periods of the most corrupt governments.
The venality of the British House of Commons has been long a topic of accusation against that body, both in that country and this.
It cannot be doubted the charge is well founded to a considerable extent.
But it is as little to be doubted there is always a large proportion of the body – consisting of independent and public-spirited individuals – who have an influential weight in the councils of that nation.
Hence the sense of that body is often seen to control the inclinations of the monarch, both with regard to individuals and to measures.
So even supposing the President might occasionally influence some individuals in the Senate, it is forced and improbable to suppose the President could purchase the integrity of the whole body.
A person disposed to view human nature as it is – without either flattering its virtues or exaggerating its vices – will see sufficient ground of confidence in the probity of the Senate to rest satisfied – not only that it will be impracticable to the executive to corrupt or seduce a majority of its members – but that the necessity of its co-operation in the business of appointments will be a considerable and salutary restraint upon the conduct of the President.
The institution of delegated power implies there is a portion of virtue and honor among mankind which gives a reasonable foundation of confidence in upright behavior. Experience justifies the theory. It has been found to exist in the most corrupt periods of the most corrupt governments.
Restrictions on New Office or Emoluments Are a Further Security
Nor is the integrity of the Senate the only reliance.
The Constitution has provided some important guards against the danger of executive influence upon the legislative body, for it declares: “No senator or representative shall during the time for which he was elected, be appointed to any civil office under the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person, holding any office under the United States, shall be a member of either house during his continuance in office.” Art. I, § 6, cl. 2, emphasis added.
This provision severely restricts movement from the Senate to the executive branch and vice-versa.
Hamilton