Current events have underscored the folly of the Seventeenth Amendment. I refer to the firestorm being created by liberal special interest groups to defeat the nominations of Chavez, Ashcroft and Norton. Had the 17th Amendment not been adopted, the problem would not be of this gravity.
What standards should be applied by the Senate in confirming or rejecting the President’s appointments?
The Constitution does not provide much guidance, providing in Article II, Section 2, Subsection 2, that the President has the power to appoint "officers of the United States" "by and with the advice and consent of the Senate."
In Federalist 76, Alexander Hamilton discussed the appointment process. He did not purport to direct the discretion of the Senators in consenting to an appointment, but he did make some important observations. Hamilton anticipated that the Senate would not often reject a President’s choice. One reason for this is that the President could simply nominate another choice very much like the first. This presupposes a President who will not be intimidated by the Senate. George W. Bush may have done this in naming Elaine Chao as a replacement for Linda Chavez as Secretary of Labor. Unfortunately, what Hamilton may have overlooked is the public relations benefits of a partisan Senate defeating a President’s first choice, and the effect that the national media can have in molding, shaping, and censoring the terms of the debate.
Hamilton also defended Senatorial consent to Presidential appointments on the theory that "unfit" persons would be rejected. The danger that the Founders sought to avoid was the ability of a single person to exercise favoritism and cronyism in his appointments. As Hamilton phrased it, the Senate could "prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity."
Hamilton thought that the prospect of a rejection in the Senate would inhibit the President from bringing forth a nominee who had such "insignificance and pliancy to render them the obsequious instruments of his pleasure."
Clearly, by Alexander Hamilton’s standards, the advice and consent of the Senate has failed its intended purpose. On the one hand, we have observed a President appoint people such as Janet Reno possessing that exactly that "insignificance and pliancy to render them the obsequious instruments" of the President’s pleasure. On the other hand, recent Presidents have used their appointments, and Senators have used their confirmation power, precisely for advancing their own personal popularity.
Why have we fallen short? The obvious structural answer is that the Senate created by the Founders is not the Senate we have today. Whereas Senators were originally chosen by their state legislatures, the 17th Amendment (adopted in 1913) made Senators subject to direct election, just like Representatives. Thus, the body that was supposed to be above the popular fray, became nearly as dependent on momentary public popularity as the House of Representatives. It is unrealistic to expect Senators today to display the same considered judgment that was expected of them by the Founding Fathers. It appears, perhaps because of tradition, that the Senate retained a certain statesmanship for a number of years following their popular election, but today the average Senator is indistinguishable from the average Representative in the depth of his pandering to important interest groups.
Is there any hope? I submit that the Senators must be challenged in their opposition to Presidential appointments. They must be made to declare their basis for opposing a nominee. The media will not force this issue, as they are content to accept the talking points of any liberal interest group who opposes a nominee. The President and those in the Senate who support him, therefore, must make the case for each nominee. If a Senator opposes a nominee on strictly partisan grounds, that should be made to appear. Second, if a President runs into a partisan defeat of his first appointment, he should appoint a second individual who is equally in accord with the President’s policies. A recess appointment might be used if necessary. As Alexander Hamilton realized, a Senate which exceeds its proper bounds in rejecting legitimate appointments must be met by an equally determined President.