Confirmation Process

• Author: Mark Silverstein
• Pages: 489-490

Page 489

The Constitution vests in the President the power to appoint, with the ADVICE AND CONSENT of the U.S. SENATE, "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." The Framers, however, were mindful that the lifetime appointment of judges to a coequal branch might demand different procedures and considerations from the appointment of officers serving limited terms in the executive branch and, as a result, throughout a good deal of the CONSTITUTIONAL CONVENTION OF 1787 the method of appointing judges was considered separately from the process of choosing executive officers. Particularly in the case of judicial appointments, achieving agreement among the delegates required a delicate balance to be struck between competing interests at the convention. Smaller states, for example, tended to favor greater senatorial control while representatives from the larger states sought enhanced executive authority through presidential appointment. Complicating the cleavage between small and large was the fundamental issue of where the center of power would be in the new national government; fearful of monarchy, some at the convention sought legislative dominance while others, extolling the virtue of efficiency, called for executive supremacy. Throughout the summer of 1787, the procedures for the appointment of judges and officers of the United States were the subject of spirited debate. The eventual compromise of presidential appointment joined with the advice and consent of the Senate only emerged from the Committee on Postponed Matters in the waning days of the convention. The product of a rather hasty trade-off among sharply held divergent views, the language and history of the APPOINTMENTS CLAUSE leave indefinite the precise nature of the role of the Senate in the appointment and confirmation process. The net result is that, although the phrase "advice and consent" has roots deep in British history, in the American context its interpretation has been shaped by the reality of contemporary politics rather than history or constitutional construction.

ALEXANDER HAMILTON, for example, in THE FEDERALIST, advocated limiting the role of the Senate in the confirmation process to guarding against presidential appointment of "unfit characters." Whatever the constitutional merits of this position, Hamilton's...