Advice and Consent

“To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.” -Alexander Hamilton, Federalist #76

There’s something a little bit weird about the role of the Senate’s oversight of Cabinet nominations. Say that a President X campaigns on policy Y, and she wins. Why should her nominee be rejected by the Senate for advocating policy Y? It’s a moment of legislative supremacy that requires additional explanation, and there’s little evidence that the Senate is more small-d democratic than the President, especially as originally envisaged. Some possibilities:

  1. The Constitution is wise, full stop. (Read no farther, heroic originalists!)
  2. Cabinet nominees may have policy agendas upon which the President didn’t campaign.
  3. As Hamilton says in the Federalist Papers, this can help uncover private corruption and conflicts of interest.
  4. This is an opportunity to tame the prince, and that’s always welcome in a system that overemphasizes the presidency.
  5. In order for the balance of powers to work to multiply rather than divide sovereign power, there has to be a lot of opportunities for confrontation and collaboration between the branches. The powers are best separated by repeatedly bringing the branches into contact.
  6. The Senate was supposed to be selected by State legislatures, so oversight of the Judiciary and the Cabinet is important for enforcing federalism and subsidiarity, which was a prerequisite for Union.
  7. The Cabinet has a dual role, working at the pleasure of the President but enforcing the laws enacted by the Legislature. So this is a moment where the Senate can force the Cabinet nominees to acknowledge that dual responsibility and protect against selective non-enforcement.
  8. Like many deliberative venues, nomination hearings require elaborate preparation. Merely educating himself for the Senators’ questions can better prepare a nominee for the policy challenges to come.
  9. It’s all a trick to give the Senate some share of the blame or praise for the Cabinet’s actions.
  10. It’s another stalling tactic in a Constitution that was designed to freeze government and enforce the principle that the government that governs best governs least.

What are some other possibilities?

  • Paul Gowder adds the remaining quote from Hamilton’s Federalist #76 (“He [the 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 coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.”) and comments: “essentially to prevent the president from appointing cads and bounders.”

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