appointment power
Oxford Guide to the US Government:
Topappointment power
The Constitution (Article 2, Section 2) gives the President the power to nominate and, with the advice and consent of the Senate, appoint officers of the United States. The Constitution also provides that Congress by law may vest the appointment of “inferior Officers” in the President alone, in the courts of law, or in the heads of departments. Presidents also appoint and promote all military officers subject to Senate consent.
The President appoints 1,000 top officials, who bear titles such as secretary, under secretary, deputy secretary, and assistant secretary of the departments. These officials collectively are the President's “administration.” The other million or so federal civilian employees are considered “inferior officers,” and almost all of them are appointed by heads of departments under civil service regulations.
To preserve the principle of separation of powers—the balance among the executive, legislative, and judicial branches—no member of Congress can be an officer of the United States while he or she serves in the Congress. Legislators are often appointed to a President's administration after leaving Congress, however.
Presidents since John Adams have chosen mostly members of their own political party for executive office, though Congress by law can require that appointments to regulatory commissions be evenly divided between Democrats and Republicans. Some Presidents, such as John F. Kennedy, chose several members of the opposition party for key positions in order to gain public and congressional support. Customarily, the Senate allows the President to pick whomever he wants for his administration, even if the Senate is controlled by the opposition party. The Senate usually does not consider the politics of nominees but restricts itself to their character. The Senate cannot attach formal conditions to its consent. It does not tell nominees what they must do once in office.
Prior to the 1950s only seven cabinet nominations were turned down. More recently, Dwight Eisenhower's nomination of Lewis Strauss for secretary of commerce in 1959 and George Bush's nomination of John Tower for secretary of defense in 1989 were defeated. Some nominees will withdraw before a Senate vote if the President senses they will be defeated; President Jimmy Carter withdrew the nomination of Theodore Sorensen for the position of Director of Central Intelligence in 1977, and President Bill Clinton withdrew his first two nominees for attorney general, Zo Baird and Kimba Wood, because of Senate opposition in 1993. In 1962 Congress refused to create the Department of Urban Affairs because President Kennedy made it known that he intended to appoint Robert Weaver to head it—and he would have been the first African American in the cabinet. By 1967 President Lyndon B. Johnson won congressional approval for the department and then for Weaver's appointment.
The President appoints 1,000 top officials, who bear titles such as secretary, under secretary, deputy secretary, and assistant secretary of the departments. These officials collectively are the President's “administration.” The other million or so federal civilian employees are considered “inferior officers,” and almost all of them are appointed by heads of departments under civil service regulations.
To preserve the principle of separation of powers—the balance among the executive, legislative, and judicial branches—no member of Congress can be an officer of the United States while he or she serves in the Congress. Legislators are often appointed to a President's administration after leaving Congress, however.
Presidents since John Adams have chosen mostly members of their own political party for executive office, though Congress by law can require that appointments to regulatory commissions be evenly divided between Democrats and Republicans. Some Presidents, such as John F. Kennedy, chose several members of the opposition party for key positions in order to gain public and congressional support. Customarily, the Senate allows the President to pick whomever he wants for his administration, even if the Senate is controlled by the opposition party. The Senate usually does not consider the politics of nominees but restricts itself to their character. The Senate cannot attach formal conditions to its consent. It does not tell nominees what they must do once in office.
Prior to the 1950s only seven cabinet nominations were turned down. More recently, Dwight Eisenhower's nomination of Lewis Strauss for secretary of commerce in 1959 and George Bush's nomination of John Tower for secretary of defense in 1989 were defeated. Some nominees will withdraw before a Senate vote if the President senses they will be defeated; President Jimmy Carter withdrew the nomination of Theodore Sorensen for the position of Director of Central Intelligence in 1977, and President Bill Clinton withdrew his first two nominees for attorney general, Zo Baird and Kimba Wood, because of Senate opposition in 1993. In 1962 Congress refused to create the Department of Urban Affairs because President Kennedy made it known that he intended to appoint Robert Weaver to head it—and he would have been the first African American in the cabinet. By 1967 President Lyndon B. Johnson won congressional approval for the department and then for Weaver's appointment.
Supreme Court nominations
Presidents also nominate justices of the U.S. Supreme Court and judges of the lower federal courts. In each term a President appoints, on average, two Supreme Court justices. On at least 60 occasions sitting justices have offered suggestions for filling vacancies, and senators often provide advice. Presidents also tend to rely upon advice from the attorney general and the Department of Justice and the White House staff. In addition, the American Bar Association Standing Committee on Federal Judiciary, established in 1946, is generally influential in the selection of justices. This committee rates Supreme Court nominees as well qualified, not opposed, or not qualified.
Many interest groups also express views about the selection of justices. For example, the National Association for the Advancement of Colored People (NAACP) tries to influence selection of justices who will protect and support civil rights for African Americans and other minority groups. Likewise, the National Organization of Women (NOW) pushes for selection of justices who are sympathetic to women's rights.
The Senate Judiciary Committee conducts hearings to investigate the qualifications and merits of a proposed Supreme Court justice. Witnesses are called before the committee to provide information and opinions about the nominee. And the nominee also appears before the committee to answer questions about his or her qualifications to be a justice. Today, these hearings are often broadcast live to large audiences and reported daily in the mass media.
The Senate Judiciary Committee concludes its hearings with a vote to recommend confirmation or rejection of the nomination by the full Senate. A nominee becomes a justice only after a favorable vote by a majority of the U.S. Senate. Of the 148 nominations through 2000, 119 were approved, 13 rejected, and 16 withdrawn. When a President's party controls the Senate, more than 90 percent of his Supreme Court nominations are typically approved; when the opposition controls the Senate, the approval rate for justices drops to 50 percent.
There are no legal requirements for appointment to the U.S. Supreme Court. However, only lawyers have been selected for the Court. And it is unlikely that a nonlawyer could win approval to become a justice. Most justices have been judges on lower courts before becoming members of the Supreme Court. Since 1937, for example, 20 of the 34 justices had prior experience as either a state court judge or as a federal judge. Some of the greatest justices, however, did not serve previously as judges. For example, John Marshall, Joseph Story, Louis Brandeis, Harlan Fiske Stone, and Earl Warren have been rated as great achievers on the Court, but none of them had prior experience as a judge.
Presidents make a strong effort to select justices who will reflect favorably upon them and their administration. Legal scholars have noted the following personal characteristics that are expected of a nominee to the Supreme Court: substantial legal training and knowledge of law, personal integrity and high ethical standards, a strong sense of fair play, high intelligence, capacity for clear and cogent written and oral expression, and sound physical and mental health.
Presidents tend to nominate justices whose political and legal views appear to be compatible with their own. They usually do not seek agreement on specific cases or examples. Rather, they tend to want a nominee who shares their general views about constitutional interpretation and the process of making legal judgments.
Many interest groups also express views about the selection of justices. For example, the National Association for the Advancement of Colored People (NAACP) tries to influence selection of justices who will protect and support civil rights for African Americans and other minority groups. Likewise, the National Organization of Women (NOW) pushes for selection of justices who are sympathetic to women's rights.
The Senate Judiciary Committee conducts hearings to investigate the qualifications and merits of a proposed Supreme Court justice. Witnesses are called before the committee to provide information and opinions about the nominee. And the nominee also appears before the committee to answer questions about his or her qualifications to be a justice. Today, these hearings are often broadcast live to large audiences and reported daily in the mass media.
The Senate Judiciary Committee concludes its hearings with a vote to recommend confirmation or rejection of the nomination by the full Senate. A nominee becomes a justice only after a favorable vote by a majority of the U.S. Senate. Of the 148 nominations through 2000, 119 were approved, 13 rejected, and 16 withdrawn. When a President's party controls the Senate, more than 90 percent of his Supreme Court nominations are typically approved; when the opposition controls the Senate, the approval rate for justices drops to 50 percent.
There are no legal requirements for appointment to the U.S. Supreme Court. However, only lawyers have been selected for the Court. And it is unlikely that a nonlawyer could win approval to become a justice. Most justices have been judges on lower courts before becoming members of the Supreme Court. Since 1937, for example, 20 of the 34 justices had prior experience as either a state court judge or as a federal judge. Some of the greatest justices, however, did not serve previously as judges. For example, John Marshall, Joseph Story, Louis Brandeis, Harlan Fiske Stone, and Earl Warren have been rated as great achievers on the Court, but none of them had prior experience as a judge.
Presidents make a strong effort to select justices who will reflect favorably upon them and their administration. Legal scholars have noted the following personal characteristics that are expected of a nominee to the Supreme Court: substantial legal training and knowledge of law, personal integrity and high ethical standards, a strong sense of fair play, high intelligence, capacity for clear and cogent written and oral expression, and sound physical and mental health.
Presidents tend to nominate justices whose political and legal views appear to be compatible with their own. They usually do not seek agreement on specific cases or examples. Rather, they tend to want a nominee who shares their general views about constitutional interpretation and the process of making legal judgments.
Advice from Congress
Presidents often place their appointment powers at the disposal of important members of Congress. Senators often provide names of people from their state to the President for nomination as federal district judges as well as for positions in federal government regional offices located within their state; the President then makes the formal nomination. Moreover, the practice of “senatorial courtesy” enables the senator of a state affected by a Presidential nomination to declare that the nominee is “personally obnoxious”—in which case the Senate will take no action on a Presidential nomination. The Senator must be of the President's party and the Presidential nomination must be to a position in which power is exercised within the senator's home state.
The Constitution authorizes the President to make recess appointments when the Senate is not in session. Such appointments last only until the end of the next session of the Senate and do not require Senate consent. If the head of a department vacates the office, Congress by law has provided that Presidents may make an interim, or temporary, appointment without the consent of the Senate if the Senate had previously consented to the new appointee for another position. The interim appointee may serve for 30 days in the new position without Senate consent.
The Constitution authorizes the President to make recess appointments when the Senate is not in session. Such appointments last only until the end of the next session of the Senate and do not require Senate consent. If the head of a department vacates the office, Congress by law has provided that Presidents may make an interim, or temporary, appointment without the consent of the Senate if the Senate had previously consented to the new appointee for another position. The interim appointee may serve for 30 days in the new position without Senate consent.
See also American Bar Association Committee on Federal Judiciary; Cabinet; Nominations, confirmation of; Senate Judiciary Committee
Sources
- Henry J. Abraham, Justices and Presidents: A Political History of Appointments to the Supreme Court (New York: Oxford University Press, 1992).
- Henry J. Abraham, Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton (Lanham, Md.: Rowman & Littlefield, 1999).
- Louis Fisher, Constitutional Conflicts between Congress and the President (Princeton, N.J.: Princeton University Press, 1985).
- Joseph Harris, The Advice and Consent of the Senate (Berkeley: University of California Press, 1953).
- G. Calvin MacKenzie, The Politics of Presidential Appointments (New York: Free Press, 1981)
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