In a letter, John Adams detailed his thoughts on the Senate’s power to confirm or reject executive nominations to judicial or bureaucratic posts.
“Not a vote or voice would I have given the Senate or any senator unless he were of the privy council,” the future President wrote. “Faction and distraction are the sure and certain consequences of giving to a senate a vote on the distribution of offices.”
In other words, Adams feared the confirmation of presidential nominees would trade off with the Senate’s higher duty of legislating. He also feared it would cause unnecessary political fights to periodically consume half of Capitol Hill. Paradoxically, he was half right — the Senate’s power to confirm appointments to the judiciary is a vital check on executive power. The power to confirm or deny any of the thousand bureaucratic jobs that a new president must fill each term, however, is becoming increasingly less meaningful. As President Barack Obama has found out, the nomination process for bureaucrats has become a moment for Congress to abandon policymaking and create political theater.
Several examples are worth mentioning. In the case of Susan Rice, former Ambassador to the United Nations, Republicans used her potential nomination to succeed Hillary Clinton as Secretary of State as a moment to criticize the Obama administration’s handling of the attacks on the American embassy in Benghazi, Libya. The Washington Post reported that though Rice made several statements on the Sunday talk shows that were later revealed to be misleading about the nature of the attacks, she was merely relying on the intelligence reports she had been provided at the time. Rice’s nomination by the GOP as a pivot for the Benghazi scandal was far disproportionate to the perceived fault of the Obama administration to secure American embassies.
Important to note that Rice ended up withdrawing her name from consideration before she had even been nominated. When some critics in the Senate argued the nomination would be dead on arrival, they begged the question of why members of the Senate were trumpeting political fanfare before their Constitutional number had been called. In reality, nomination debacles such as the Rice conflict reflect poorly on all parties involved, including Obama.
The latter is especially true in the case of Larry Summers, the man who until four days ago many thought to be a clear front-runner to succeed Ben Bernanke as chairman of the Federal Reserve. Like Rice, Summers withdrew his name from consideration after coming under fire from members of Congress. Like Rice, Summers could have been appointed months before political explosions forced him out. Like Rice, it appears that Summers was hung out to dry by the president, and eventually catapulted after Syria and the debt ceiling debates came together to create a virtually immovable political atmosphere for an already tough confirmation. For what time he has left, the two cases are a warning to Obama — either nominate quickly or risk losing nominees to the political intricacies of Congress.
Furthermore, Obama’s reckless appointments to the National Labor Relations Board while the Senate was in recess in January of 2012 were overturned by three different circuit courts, according to Politico. The unconventional lesson to be learned is that court decisions demonstrate the necessity of allowing the executive to appoint those positions without Senatorial confirmation in the first place.
On the judiciary end, however, the nominations process is an important check on executive power. Such a system has been seen year after year to create meaningful limits for an overzealous executive. In fact, the most important power of the Supreme Court, judicial review, was enshrined in Marbury v. Madison (1803), a case that arose over the nomination of a federal judge by outgoing President John Adams.
According to the database kept by the Senate since 1789, 36 out of 160 people nominated to the Supreme Court were not confirmed. On the other hand, just 15 of the hundreds of cabinet appointments since then have been denied, the most recent coming in 1989. And though senatorial rejection of judicial appointments has come more often, senatorial rejection of bureaucratic appointments have caused far more political controversy. At a time when Congress can barely prevent a government shutdown, re-examining this flaw in the allocation of political time could prove crucial.
Nathaniel Haas is a sophomore majoring in economics and political science. His column “A House Divided” runs Thursdays.
Follow him on Twitter @haas4prez2036