Understanding the Constitution: “Advice and Consent” and the Public Good

The 2024 nomination of Matt Gaetz for Attorney General of the United States and his quick withdrawal highlight important elements of the framers’ insight in Article II, Section 3 of the Constitution. First, a president has the right to staff his administration with people he deems qualified.  Second, there is a check on that power - nominees can be rejected during the “advice and consent” of the Senate.  

These provisions have worked well because they create incentives for both the president and Senate to regard the public good. Only nine cabinet nominees have ever been rejected by the Senate and just 19 nominations or proposed nominations have been withdrawn before a vote.  In all these cases, of course, the president eventually got another person confirmed.  Similar results have occurred for Supreme Court nominees.

This issue was debated at the Constitutional Convention. James Madison argued that the Senate, the “more select body” should make appointments as they would be less influenced by “partialities.”  But Nathaniel Gorham argued persuasively for what we have today: the president nominates and the Senate is vested with “advice and consent.”  Gouverneur Morris summarized the approach: “as the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security.”  The executive would be accountable for the actions of his administration but the Senate would assure those confirmed are fit to serve.

Underlying these mechanics are principles central to self-government.  These were highlighted by Alexander Hamilton in Federalist #76 during the ratification debates. The framers’ expectation that people of character and competence fill high-level posts would, he argued, be met by a president’s sense of duty:

“The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will on this account feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretentions to them.”

Why then is the Senate even needed?  Hamilton explains:

“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 preventing the appointment of unfit characters.”

The framers also believed the president would care about his reputation:

“He 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.”

Hamilton also argued that fidelity to good government would also reside in senators:

“[t]he supposition that he [the president] could in general purchase the integrity of the whole body would be forced and improbable. . . that it will be impracticable to the Executive to corrupt or seduce a majority of its members.”

George Washington, as the first president, insisted that “fitness and character” be the sole qualifications for nominees.  As professor of government Frederick Mosher noted in Democracy and the Public Service: during the early years of the republic: “The business of government was prestigious, and it was anointed with high moral imperatives of integrity and honor.”

The advent of political parties and the polarization of politics which began after Washington and have intensified since challenge the founders’ hopes. What if ideology and party politics drive nominations rather than character and competence?  What if a president and senators lack the moral scruples or assumed fidelity to sound principles of self-government? 

In our time, two possible avenues for weakening advice and consent exist and should be watched carefully. Section 2 gives the president “[P]ower to fill up all Vacancies that may happen during the Recess of the Senate” with such appointees able to serve for the balance of the two-year Congressional session. This could lead to disagreement about what constitutes a recess, how a recess is called by Congress and whether a president might even adjourn Congress (see Article II, Section 3) to create a recess during which he would fill positions without needing Senate approval.

The 1998 Federal Vacancies Reform Act also bears watching.  It is allows a president to temporarily fill advice and consent positions with someone in an “acting” capacity when an opening exists due to death, resignation or other reason, such as during a presidential transition.  If misused, it could allow a president to circumvent “advice and consent” by naming an acting official to do his bidding. Who the president may choose has some constraints, but the language is complex enough to be troubling.   

The clear purpose of the Constitution is to fill high-level positions with people of integrity and competence.  The Constitution’s framers understood human nature could lead some to sacrifice these principles and so designed the responsibilities of the president and Senate to constrain either party. Yet ethical behavior by a president and senators must underlay “advice and consent” if the process is to safeguard the republic.

Photo Credit: U.S. Senate

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