PLANK JANUARY 9, 2013
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The furious opposition to the Hagel nomination has moved many commentators to a certain nostalgia---conjuring up a simpler time, when Cabinet selections were less controversial. Since World War II, only two cabinet nominees have actually been voted down, and six more have withdrawn rather than face a vote. And as is often the case, given the weakness of our grasp of history, the past seems normal and the present becomes aberrant. No doubt this rose-colored nostalgia explains why liberals and conservatives alike are complaining that Hagel is being “borked.”
Now, in the first place, the data are a little off. They do not include, for example, withdrawals of nominees for Director of Central Intelligence (Robert Gates in 1987, Theodore Sorensen in 1977) and other non-Cabinet executive positions. (Remember Peter Diamond, just last year?) They do not include nominees whose names presidents have floated in order to gauge the opposition and decided not to choose after all. (Okay, then, remember Susan Rice?)
More to the point, however, the current debate inverts the history. The placidity of the recent past is unfortunate: Big battles over cabinet nominations are exactly what the Framers would have anticipated in an era of such enormous presidential power. They would have considered few notions as dangerous as the theory that the president, by virtue of his electoral victory, is entitled to “his own team.”
Both the Constitution and the Articles of Confederation that preceded it modeled the president’s cabinet on the British cabinet council. The Framers worried about presidential authority, and imagined that the cabinet would serve as a restraint on its exercise. At the Philadelphia Convention, the delegates could not agree on precisely what powers the cabinet would possess, and therefore omitted the body from the Constitution. But the requirement for Senate confirmation of the heads of the departments was seen, as Alexander Hamilton pointed out in Federalist No. 77, as itself constituting a restraining influence on the president. He added in Federalist No. 76 that the president should not be able to fill the executive branch with people who were – wait for it – “personally allied to him.” Not only was the president not entitled to his own team; the expectation was precisely the opposite.
In the early years of the Republic, the president’s personal staff was small and relatively weak. The Cabinet secretaries enjoyed considerable discretion. Positions in the Cabinet were often held by men who were political powerplayers in their own right, and who might serve in many different administrations, in many different capacities. For the first seventy years of the Constitution, no president dared nominate Cabinet secretaries without advance consultation with powerful members of Congress. Abraham Lincoln adhered to this custom, famously peopling his cabinet with political opponents, but he also set the stage for change by replacing 1,457 of the 1,639 executive branch officials holding appointive office. Up until that time, most federal office holders below Cabinet level customarily continued from one administration to the next. (Even the highly partisan Jefferson, when he took over in 1801, was cautious in dismissing Federalists.)
The traditional restraints on executive branch appointments collapsed entirely following the disputed election of Rutherford B. Hayes in 1876. Hayes refused to listen to the council of leading senators and congressmen, and insisted instead that he would appoint his own team. This notion raised hackles, but Congress, sorely weakened by its own infighting, soon acceded.
Hayes’s attitude toward the appointment power was driven largely by his reform agenda. He had promised in the campaign to end the spoils system, and the traditional deference to congressional opinion would have deprived his administration of such patronage opponents as Carl Schurz. Nevertheless, the inability of the Senate to protect its prerogatives heralded the start of the long downward slide that has brought us to our present pass. Once the president became entitled to his own team, what exactly was the function of the Senate’s power to advise and consent to executive branch appointments? The answer is, virtually none. And the Senate over time came to behave that way. It was no longer a coequal body that the president must consult before making major appointments; it was a rubber stamp. In the second half of the twentieth century, not only were defeats and withdrawals rare--some eight out of nine nominees for the cabinet received the affirmative votes of at least 90 percent of the Senate.
So the tendency now and then to “bork” an executive branch nominee, although certainly not a good thing, arises from an entirely explicable cause. The modern presidency, under both parties, has become a quasi-constitutional juggernaut. One of the few ways of even slowing it down is for the Congress to reassert some fraction of the control the Framers expected.
Some forty years ago, the great legal scholar Charles Black pointed out that in the balance of power, the Constitution places into the hands of the Congress “just about everything.” He noted, perhaps wistfully, that “Senatorial control over the appointment process could at will be made much more thoroughgoing than is our current custom.”
Unfortunately, the trend Black identified has continued and even intensified. The Framers would have been appalled at the unwillingness of today’s flabby legislature to use its powers as serious checks on presidential authority.
I have no brief for or against Chuck Hagel. But as a student of the confirmation process, I do see how opponents could come to believe that innuendo and vilification are nowadays the only way to get anybody to pay attention. This is a cruel and tragic development, but it is the sad pass to which a century and a half of congressional spinelessness has brought us.
15 comments
A most interesting post. It's unclear from the reports whether the flap over the nominee comes from a powerful Senate determined to provide advice and consent in the future or whether the opponents of the nomination are upset over the possibility of the nominee's eventual confirmation.
- Doug12
January 9, 2013 at 1:18pm
This is written as if Congressional motives were pure, or the recent past of Congressional acquiescence resulted in deeply flawed appointees. I fail to see how a Congressional check on presidential appointment powers is somehow admirable if Congress uses it to exact political revenge on individuals or gain patronage or obtain any of its other seedy goals. Hagel is a well-qualified moderate who angered his own party. Hagel won't decide administration policy, Obama will. The opposition is simple showboating and not defensible (in contrast to the fight against Bork, who was known as a cultural reactionary and would have made his own decisions).
- polcereal
January 9, 2013 at 1:38pm
Great piece, Stephen!
- Tristan
January 9, 2013 at 1:39pm
I'm with Tristan (hello!). Never thought I would read anything at the new tnr that actually explains why the U.S. Constitution deliberately made the Executive so weak. It would be nice to see a follow up on why domestic legislation is supposed to originate in the House, not come from the Oval Office.
- K2K
January 9, 2013 at 2:46pm
having cabinet members running their own fiefdoms makes little sense, you can't have State and Defense with radically different agendas with both being political opponents of a President. I agree with advise and consent so no hacks like Brownie would get patronage posts and then screw up royally. The advice part though seems best to be "not this one, try another" until they consent. And I don't care if Republicans filibuster Hagel, it will just be another example of their insanity of rule or ruin, it is not enough to even be a Republican you have to be a neo-con as well.
- blackton
January 9, 2013 at 3:22pm
"This is written as if Congressional motives were pure" What is "pure" where politics are concerned? And shouldn't we extremely wary of "purity" as a measure for the morality of a motive?
- Noga
January 9, 2013 at 4:07pm
Of course, it was (opposition to) certain executive appointments (and executive power) that gave us judicial review, an irony; diminished executive power at the price of (substantially) increased judicial power. I find it amusing that today we attribute to the founders/framers concern for restraint on the power of individuals when nobody challenged or even questioned the American aristocracy of their time (i.e., the founders/framers). Washington, Adams, Jefferson, Madison were simply declared president, the only competition being among themselves (e.g., Adams/Jefferson/Burr). Sure, I revere the founders/framers, my only regret being that Franklin was too old to be president; my image of Franklin as president, naked, frolicking with young, French women. Today, instead, the image is of the plebian Clinton and whatever her name, she definitely not French. Power isn't what is was, or should, be.
- rayward
January 9, 2013 at 5:00pm
On four words in one of the Federalist Papers, Carter deduces what the founding fathers would have wanted? This is also a major problem with the originalist school of constitutional interpretaion. If often devolves into cherry picking quotations and anecdotes, instead of facing the fact that the historical record often reflects debates about the proper meaning of the constitution as it was drafted and ratified that are pretty much the same that we face today. Interpreting the Second Amendment is Exhibit A.
- peterpalys
January 9, 2013 at 6:31pm
Carter has no idea what the Founding Fathers would have wanted. I do, however. I consulted about this with the ghosts of Adams, Jefferson, Madison, and Hamilton (Washington being busy elsewhere at the time). They told me that the think Hagel should be judged based on his professional competence for the position because he is not going to be the decider of policy but the instrument by which the president makes his policy. Jefferson in particular was quite adamant about this, and sniffed that, if it were up to him, Carter would still be a slave. He doesn't quite understand how Carter gets to write for TNR in the first place. If anyone is in need, I am available to channel the Founding Fathers as necessary. I also have a good working relationship with Napoleon Bonaparte, Harry Hopkins, and Learned Hand. Once in a while, I can get ahold of TR, but I have never gotten anywhere with Lincoln. Don't know why.
- roidubouloi
January 9, 2013 at 8:34pm
Madison pointed out to me that there is a difference between cabinet appointees, who serve at the pleasure of the president, and judicial appointees with life-time tenure and complete independence of both the executive and the legislature. Until Madison brought it to my attention, the thought had never occurred to me. He also noted that there is a difference between appointees to head independent or semi-independent, professional agencies, such as the CIA or the SEC, and appointments to cabinet positions who are meant directly to execute presidential policy. He is still a very thoughtful guy that Madison. Although, he doesn't like the fact that a brand of ice cream is named after his wife. He finds it unseemly.
- roidubouloi
January 9, 2013 at 8:41pm
Here peterpalys. This Bud is for you: http://www.tnr.com/blog/plank/111609/the-beltways-normalization-hostage-taking?page=1#comment-390335
- roidubouloi
January 9, 2013 at 9:04pm
Here is a worse idea than mine for avoiding the debt ceiling hostage taking: http://www.nytimes.com/2013/01/10/opinion/an-escape-hatch-for-the-debt-ceiling.html?ref=opinion This guy suggests issuing scrip, although there is no particular authority for doing so. I suggest issuing Treasury checks, for which there is clear authority in Congressional appropriations. He suggest that banks can accept the scrip in deposit at a high percentage of value. I suggest that the Fed can accept Treasury checks at 100% of face value. The advantage of his proposal is that it does not depend on the Fed's cooperation. But it does require the cooperation of banks that have to be concerned about their own solvency and liquidity whereas the Fed has no such concerns. Better for the Fed to step up to the plate than to rely on private banks doing so. But at least someone in the public sphere is beginning to think in the right direction. Do we think anyone in the White House or the Treasury reads TNR?
- roidubouloi
January 9, 2013 at 10:40pm
Ross Douthat of the NYT advises that the trillion dollar platinum coin option would be bad for liberals because it would reinforce the paranoia of the extremist right. Instead, he says, if the right creates a crisis, let them be defeated at the polls in 2014 and 2016. I had not previously considered this option very seriously. However, if a Douthat or a Brooks thinks something would be bad for the left, that invariably means that it would be good for the left. They are specialists in poison cake for the left, "with icing turned a tempting green." Perhaps, therefore, the platinum coin option should be considered more seriously, although I still much prefer simply having the Treasury continue to write checks that are not covered by the terms of the law limiting Treasury debt.
- roidubouloi
January 9, 2013 at 11:04pm
Carter's argument isn't reducible to four words and it isn't for originalism as an exclusive interpretive theory of your Constitution. Rather it's a historical argument based on modelling precedent and historical precedent, the confirmation process itself of a piece with overarching checks and balances, historical practice, other things. I find his argument compelling.
- basman
January 10, 2013 at 2:26pm
But is it what the Founding Fathers would have wanted? And why should we give a shit what the Founding Fathers would have wanted? In what way does refusing or threatening to refuse to confirm perfectly competent nominees who are to serve at the pleasure of the president implementing his policy serve the nation? It doesn't. The ideological scrutiny should be reserved for those who are to serve in independent or semi-independent offices.
- roidubouloi
January 10, 2013 at 8:48pm