FORUM

William G. Ross
Cumberland School of Law, Samford University
JURIST Contributing Editor

The Senate’s role in confirming Cabinet officers and other executive officials is a source of much hypocrisy. Republicans who applauded the Senate for its close scrutiny of Clinton appointees in 1993 and 1997 now cry "foul" when the Senate applies the same scrutiny to the nominees of a Republican president-elect. Similarly, Democrats who only four years ago were denouncing the confirmation process as a "snake pit" and "political circus" now insist that the Senate should assert itself as an active partner in the appointment process.

My own views have not changed. Four years ago, I wrote a law review article arguing that senators should closely scrutinize Cabinet nominees and should not hesitate to vote against confirmation of nominees whose political views significantly diverge from their own. I stand by that position even now that the political table has been turned.

Questions regarding the Senate’s role in offering "advice and consent" to Cabinet nominations arise at the start of virtually every new Presidential administration, when at least one nominee usually generates political controversy. The principal issues are what criteria the Senate should use in evaluating nominees and the appropriate balance between deference to the President’s choice and an exercise of independent judgment. Al Gore probably spoke for members of both parties when he observed as a senator in 1989 that the confirmation process "makes everyone uncomfortable. The task of judging the qualifications of a nominee is one that is, under the best of circumstances, extremely difficult."

The failure of the text of the Constitution and the intent of the Framers to provide any specific guidance with regard to these criteria often has exasperated senators. Senator Nancy Landon Kassebaum articulated this challenge when she observed in 1989 that the Framers "expected us to find our answer in the same uncertain wisdom and limited understanding in which they lived and worked and so created democracy itself."

In the absence of formal standards, the Senate must look to its own history. The Senate’s role in the Cabinet appointment process during the past two centuries has been remarkably vigorous. Although the Senate has rejected only one percent of the nearly 900 Cabinet nominations, this statistic obscures the controversy that often attends them. Similarly, the lopsided margins by which most Cabinet nominees are confirmed is not a reliable gauge of actual opposition to nominations because many senators see no point in joining a lost cause.

During recent decades, the Senate’s scrutiny of Cabinet appointments has increased. With major controversies over three of Bush’s principal nominees, the level of contention between the incoming administration and the Senate already has reached a virtually unprecedented level. Although this may reflect growing partisanship and lingering bitterness over the disputed election, it more broadly represents a continuation of a trend toward greater recognition by the Senate of the vast power exercised by Cabinet officials.

There is general agreement that the Senate normally should defer at least in part to the President's choice of executive officials. Although some senators have contended that an incoming president may deserve special deference, a president-elect’s nominees may actually warrant special scrutiny because they will determine the character of the new administration. Senate debates on the nomination of Cabinet members are replete with statements that there is a presumption in favor of the nominee, although senators have differed rather widely in assessing the strength of this presumption.

There are several reasons for deference to the President’s choice. Time constraints naturally limit the extent to which the Senate is able to consider nominations. Similarly, as Alexander Hamilton pointed out in The Federalist, one president can select an executive officer more expeditiously than can one hundred senators. Moreover, a senator who does not like the ideological character of a President's choice is not likely to harbor any illusions that the President is likely to nominate a significantly different type of person if the Senate rejects the nomination. The President needs to have advisers that he or she can trust and who are ideologically compatible with the President since the officers are supposed to execute his programs. Finally, senatorial deference encourages greater presidential accountability to the extent that Cabinet members are perceived as agents of the President.

Even though senators tend to defer to the President's choice, senators regularly have emphasized that they are significant partners in the selection process. As Senator Warren G. Magnuson once observed, "I do not think anyone is anointed simply because he is appointed." Similarly, Senator Carl R. Levin stated that "[t]he President is entitled to someone in whom he has confidence, of course, but the Nation is also entitled to someone in whom it has confidence." Likewise, Professor Calvin MacKenzie of Colby College aptly has explained that the confirmation process "affords the Senate an opportunity to carry on in another context its persistent struggle with the executive branch to shape the contours of public policy." Senator John Breaux observed in 1977 that "we will do the President the greatest service when we give him the benefit of our most critical judgment, not when we go along to serve our convenience or his." Breaux explained that the Senate has the duty to "search out facts, possibly unknown to the President when he made his initial decision, and cast our votes as those facts require."

Rigorous senatorial scrutiny of Cabinet nominations does not need to cause rancor or undue friction between the Senate and President. As Senator Eugene J. McCarthy once pointed out, "[w]ithholding of consent should not be considered an affront to the President," anymore than the President's veto of legislation should be regarded as an affront to the Senate.

A rigorous senatorial review of executive appointees also helps to remind these unelected officials that they are servants of the people, to whom they are accountable. As Senator Charles Percy explained, "[t]he process that publicly elected officials go through is a humbling process. It brings us down to size. It causes us to reexamine everything we have done or thought and puts us to the test. The confirmation process is in a sense a substitute for that."

Many factors for evaluating nominees have been listed by senators during various confirmation hearings and debates. These include personal integrity; competence; lack of conflict of interest; temperament; judgment; vision; views on particular policy issues; ability to cooperate with Congress; objectivity and balance; and adherence to positions that would not prejudice the public interest.

The consideration of a nominee's opinions on substantive policy issues is an increasingly significant part of the appointment process. The Senate has a duty to inquire into the political philosophies and policy preferences of nominees. What Professor MacKenzie observed in 1981 remains ever more germane today:

"Public policy issues dominate the confirmation process. No topic is discussed more widely in confirmation hearings; no factor looms larger in shaping confirmation decisions. Above all else, the confirmation process is a forum in which the preferences and concerns of the Congress are brought to bear on the development and implementation of American public policy."

Scrutiny of the policy predilections of nominees also is appropriate because executive officers carry out the programs of Congress. As Dr. Louis Fisher has explained:

"To defer to the President, on the principle that he has a right to select his own assistants, makes a nullity of the Senate's advice-and- consent role. Department heads and their assistants are not merely staff support for the President. They are called upon to administer programs that Congress has enacted into law. A lack of interest by an administrator or overt hostility to a legislative program can eviscerate the policies that Congress has taken pains to announce as national goals. Administrators so disposed can shatter agency morale and create uncertainty for career personnel, who may not know whether they are supposed to implement or sabotage the statutory objectives."

Some senators and commentators have suggested that the Senate's consideration of public policy questions in confirming executive nominations improperly interferes with the President's mandate from the voters to carry out policies of his own choosing through his executive officers. The persistence of this "mandate theory" helps to explain why senators are particularly deferential to the nominees of an incoming President.

An examination of the bases for the mandate theory demonstrates that it offers little or no support for a quiescent role for the Senate in the confirmation process. First, Presidents ordinarily do not have clear mandates from the voters to pursue particular policies. In contrast to foreign nations such as Great Britain, where elections are sometimes referenda on sharply defined issues, American presidential candidates tend to be deliberately vague about the policies that they will pursue. Official party platforms are mostly empty rhetoric designed to placate special interest groups rather than to provide realistic blueprints for a presidential administration. Moreover, the weakness of a President’s mandate following a very close or contested election warrants particularly careful scrutiny of his Cabinet nominees.

Even to the extent that a President might have a mandate to pursue particular policies, senators likewise have a mandate from the voters. If, for example, a successful senatorial candidate favors increased spending for social welfare programs, he has a mandate from his constituents to inquire into the policy positions of a nominee to be secretary of health and human services, even if the President who made the nomination was outspoken during the presidential campaign in his advocacy of a contrary position. Senator Robert Byrd once aptly declared that "[a] new President's nominee should be viewed with the same probing, careful, meticulous scrutiny, as should the nominee of a President who has served 2 years, 3 years, 4 years, or well into a second term."

Although senators do not demand that nominees wholly conform to their own political ideals, senators often extensively examine the political philosophy of a nominee in order to assure themselves that the nominee is not too far estranged from a senator’s own political views.

Political scrutiny of nominees is appropriate because politics obviously influences presidential appointments. It seems incongruous, asymmetrical, and unfair to argue that the President may allow ideology to influence the nomination of an Attorney General but that the Senate must ignore those very same considerations in confirming those very same officers pursuant to the "advice and consent" clause. As Senator Fred R. Harris stated in 1972, "[t]here is no provision in the Constitution that our rejection of a candidate may only be on moral or ethical grounds. In deciding to vote for or against confirmation...Senators may, and should, consider any or all of the criteria the President considers when he nominated" the candidate.

Senators who oppose a nominee for philosophical reasons should avoid hypocrisy. In many instances, objections to policy positions masquerade as concerns about conflicts of interest, qualifications, or other issues. As Senator East observed, "if our objections to a given nominee are fundamentally of a philosophical or substantial nature, then we have the obligation to say so."

There is cause to argue that the Senate should subject nominations for some Cabinet positions to more careful scrutiny than others. Numerous senators, commentators, public interest groups, and scholars have argued in particular for close scrutiny of nominees for Attorney-General. As Senator Charles Percy explained after President Carter’s controversial nomination of Griffin Bell in 1977, "the Attorney General requires more stringent standards than any other Cabinet post." Similarly, Senator John H. Chafee observed at the same time that "the criteria for judging a nominee for Attorney General are stiffer than that for judging other Cabinet members." And the president of Common Cause aptly remarked during the protracted hearings on Edwin Meese in 1984 that "the appointment of an Attorney General is too important to grant confirmation after superficial examination out of party regularity or upon the ground that the President is entitled to his choice."

Nominees for Attorney-General deserve this heightened attention for several reasons.

First, it is imperative that the nation's chief law enforcement officer should stand above the partisan politics of the Administration in which she serves and administer justice even-handedly.

As Senator Joseph R. Biden, Jr. told Edwin Meese during his confirmation hearings:

"You are...to become the people's lawyer more than you are to be the President's lawyer. Consequently, the question relating to your nomination is not merely whether or not you possess the intellectual capabilities and the legal skills to perform the task of Attorney General, and not merely whether you are a man of good character and free of conflict of interest that might compromise your ability to faithfully and responsibly and objectively perform your duties as Attorney General, but whether you are willing to vigorously enforce all the laws and the Constitution even though you might have philosophical disagreement with them, and whether you possess the standing and temperament that will permit the vast majority...of the American people to believe that you can and will protect and enforce their individual rights."

The insulation of the attorney general from partisan politics should be a matter of particular practical concern since many attorney generals have had intimate personal ties to the President.

Closely related to the need to stand above partisan politics is the need for the attorney general to take seriously his or her role as a special guardian of the rights of the poor and the dispossessed, racial and political minorities, and other persons who need the special protection of the laws because they may lack effective means of influencing the executive and legislative processes. As Senator Edward Brooke explained during the debate over Bell in 1977, the Senate has a constitutional responsibility to "carefully scrutinize" the qualifications and also the performance and the promises of an Attorney General nominee because "that office, perhaps more than any other Cabinet post, requires great integrity as well as great sensitivity to the rights of the oppressed and the disenfranchised."

It is also imperative that the nation's chief law enforcement officer be beyond reproach in her personal character and her respect for the law since the attorney serves an example to all citizens and should be a role model for lawyers. Three attorney generals in this century have been enmeshed in ignominious affairs -- Harry M. Daugherty of the Harding Administration, who was indicted for conspiracy in the Teapot Dome scandal, and John Mitchell and Richard Kleindienst of the Nixon Administration, who served time in prison for their role in the Watergate scandal.

Moreover, the Senate should scrutinize attorney general nominees more carefully than others because the Justice Department is more closely connected than are other executive departments with both the legislative and judicial branches of government. By profoundly influencing the process by which federal statutes are enforced, the Justice Department necessarily interacts closely with Congress. As Senator Patrick J. Leahy stated during the hearings on Meese, "although the Supreme Court has the last word on what our laws mean, the Attorney General often has the first word, and the first word, so many times, determines the last word...The success of much of the work of Congress always depends on who is sitting at the head of the Justice Department."

Similarly, the Justice Department is intricately involved with the judiciary in countless ways, from bringing lawsuits on behalf of the government to helping the President select federal judges. With all three branches of government converging in the Justice Department, the Attorney General's office is far more than the province of the President. The Senate therefore has reason to be especially interested in who serves as attorney general.

Although the Senate exercises stricter scrutiny of Attorney General nominees, the criteria by which it evaluates these nominations are essentially the same as those that it uses in connection with other Cabinet nominations.

In addition to carefully scrutinizing an Attorney General nominee’s public policy positions, the Senate also needs to pay particular attention to his or her character. As Senator Moss stated during the tumultuous consideration of the nomination of Richard Kleindienst in 1972, “[m]ore than any other post in the Cabinet, the national role of the Attorney General is determined by the character of the man who holds the position.”

In considering character, the Senate needs to discern whether the nominee has an open mind that will enable him to diverge from his political predilections if practical circumstances or justice so require. In numerous confirmation hearings, senators have expressed concern about whether highly ideological nominees have the open-mindedness necessary to fulfill their role with flexibility and fairness. Such attributes are particularly needed in an Attorney General since the Attorney General is the nation’s chief law enforcement officer.

In their assessment of character, senators also have emphasized the importance of sensitivity toward racial and gender issues. Accordingly, the Senate in 1977 devoted careful scrutiny to charges that Griffin Bell was insensitive to racial injustice, since the Attorney General has so much power to determine how civil rights laws will be enforced. Similarly, allegations that John Tower was insensitive toward gender issues was a major factor in the Senate’s rejection of his nomination as defense secretary in 1989.

The criteria on which senators decide whether or not to approve a nomination are necessarily subjective. As Senator Robert C. Byrd explained in opposing Alexander M. Haig's nomination as secretary of state in 1981, "the factors that influenced me are subtle and difficult to convey." Similarly, Senator Birch Bayh stated aptly during the hearings on Bell that "I do not know of any litmus test on which we can guarantee what kind of Attorney General or what kind of Senator or President or State legislator we get. We look at the facts. In the final analysis, it's the cut of the human being. It is the individual. It is the character of the [person] involved."

Recent hand-wringing over the Senate's rough handling of various Clinton and Bush nominees has obscured the fact that the Senate is deferential -- perhaps excessively deferential -- towards most nominees. The scandal-pocked history of all too many administrations of both political parties demonstrates that too many persons of dubious merit have received the Senate's perfunctory approval. Persons who are going to serve in high public office ought to receive careful scrutiny from more than one branch of government.

A robust confirmation process helps to ensure that executive officials satisfy high standards of ability and character. Vigorous and occasionally rambunctious confirmation proceedings also help to prevent the political philosophies of appointed officials from straying too far from the politics of the voters who elect senators to offer advice in connection with Cabinet nominations and to offer -- or withhold -- their consent.

January 16, 2001

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