by Mitchel A. Sollenberger. Lawrence, KS: University Press of Kansas, 2008. 320pp. Cloth $39.95 ISBN: 9780700615766.
Reviewed by Richard L. Vining, Jr., Department of Political Science, University of Georgia. E-mail: rvining [at] uga.edu.
In THE PRESIDENT SHALL NOMINATE, Mitchel A. Sollenberger provides an informative, comprehensive, and timely historical study of the selection of nominees for appointed federal offices. The book addresses the powers shared by the legislative and executive branches in the selection process, and how their roles have developed over time. At a moment when the press and politicians scrutinize or criticize inexperienced appointees (e.g., FEMA director Michael A. Brown), the role of politics in their removal (e.g., seven United States Attorneys), and controversial appointments to the federal courts (e.g., Charles Pickering, Janice Rogers Brown, Harriet E. Miers), Sollenberger provides much-needed perspective.
Research examining nominations and appointments tends to focus on (1) confirmation votes and (2) federal judges. Sollenberger goes beyond each of these, turning a critical eye to the “pre-nomination process” (p.3) and the broader pool of nominees, including federal judges, cabinet members, ambassadors, US Attorneys, Customs Bureau officials, postal service employees, and other positions. This is largely unexplored territory. Scholars, including Michael J. Gerhardt (2003) and G. Calvin MacKenzie (2001), have also studied the federal appointments process, but neither matches Sollenberger’s attention to institutional interaction at the selection stage. The scarcity of studies on this topic alone makes this a welcome contribution.
As Sollenberger correctly explains, the Constitution speaks to the structure of the appointments process in Article II, Section 2. It states that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” THE PRESIDENT SHALL NOMINATE illustrates that how this translates into practice has been the subject of controversy and compromise since the Founding.
The book, based on Sollenberger’s dissertation research, is organized chronologically. He culls historical detail from both existing studies and private records, with evidence from correspondence and manuscripts providing new insight into formal and informal aspects of the nomination process. Chapters 1-8 each focus on a particular period of American political history, from the colonial period through the tenure of George W. Bush. [*669]
Chapter 1 explains the historical roots of the appointment power in America. Sollenberger provides a novel and informative exploration of the selection of government officers prior to 1789 in both the state and national governments, arguing that contemporaneous practice informed the Framers.
The author posits that originalism and textualism are of little value in interpreting the Appointments Clause. Despite Alexander Hamilton’s argument for executive dominance in Federalist No. 66, often cited as evidence for the Founders’ intent, Sollenberger shows that there was dissent on the issue among the authors of the Constitution (pp.20-21). In fact, he explains that mistrust of a dominant executive led both the Continental Congress and delegates to the Constitutional Convention to establish legislative participation in appointments.
Chapters 2 through 4 describe the relationship between legislators and the president in the pre-nomination process from 1789 through 1869. These chapters include the period from the establishment of the appointment process after ratification of the Constitution through the birth of civil service reform.
Sollenberger depicts the period before Andrew Jackson’s presidency (prior to 1829) as one of adjustment, with both presidents and members of Congress finding their place in the appointments process. Presidents deferred to senators and representatives, particularly from their own political faction, because the latter had more information about the quality of potential nominees. Concurrent developments led to the association of appointments with the advancement of electoral and political goals. These chapters explain that, while not all early presidents exploited patronage appointments (John Quincy Adams did not, for example), events in this period established the custom that presidents rely on legislators to suggest and evaluate job candidates.
The period from 1829-1869 is labeled the “The Spoils Era.” Sollenberger says that it began with the introduction of the “rotation principle” by President Andrew Jackson, after which appointees were routinely removed as the new executive distributed jobs to his supporters (pp.47-55). Sollenberger carefully delineates how and why some presidents (e.g., Presidents Tyler and Polk) sought to alter the balance of appointment power in their favor but failed in the face of legislative opposition. By the Lincoln administration (1861-1865) Congress is described as dominant in the appointments process, in part because Lincoln sought congressional cooperation with the war effort. Attempts to reverse this trend by Andrew Johnson after Lincoln’s assassination only added to his political problems. Johnson, like Tyler before him, is characterized as trying to restructure the pre-nomination process in his favor only to face backlash from Congress.
In Chapters 5 through 7, Sollenberger discusses the period from 1869-1977. He explains that during this time the process by which nominees were selected was reformed in a slow but meaningful way. Legislation such as the Pendleton Act (1882), the Ramspeck-O’Mahoney Act (1938), and the Postal Reorganization and Salary Adjustment [*670] Act (1970) professionalized components of the civil service and altered the relationship between the executive and legislative branches.
The existing pre-nomination process was challenged repeatedly from 1869 into the 1880s, with Sollenberger describing efforts by Senator Lyman Trumbull (R-IL), President Rutherford B. Hayes, and others to encourage reform. The event identified as the tipping point in this effort is the 1881 assassination of President Garfield by a disappointed office-seeker, Charles Guiteau. The resulting Pendleton Act (1882) limited congressional influence by requiring that some appointments be awarded on the basis of performance on civil service exams. Presidents continued to remove and replace officials not protected by the Pendleton Act, but incrementally increased the proportion of federal workers removed from the traditional pre-nomination process.
Despite these reforms, Sollenberger describes a system resistant to change and presidents who continued to mind (if not welcome) congressional advice. The Ramspeck-O’Mahoney Act (1938) took the radical step of placing postal appointments under civil service protection; Sollenberger rightly points out that this happened while the New Deal created about 100,000 additional positions to be distributed as patronage (pp.136-137). Subsequent presidents (with the exception of Lyndon Johnson) are described as initially resisting Congress from the 1940s through mid-1970s, but mostly falling in line with past practice after objections were raised. Major formal and informal reforms to the pre-nomination process came during the Nixon and Ford administrations, as the former reorganized the Postal Service as a government corporation and the latter (hobbled by political circumstances after Nixon’s resignation) allowed greater input from the party out of power in the selection of nominees. As explained in the final historical chapter, these efforts to increase professionalization and solicit minority input had consequences.
Sollenberger describes the last three decades, from 1977 through 2007, in Chapter 8. The strength of this chapter is its description of the modern pre-nomination process as it has incorporated elements of both its partisan past and legacy of reform. Presidents in the last 30 years are depicted as approaching the pre-nomination process differently, but in each case working with the Senate or other officials as necessary. President Carter sought to enhance the role of merit in judicial appointments by establishing merit commissions, but largely failed. President Reagan abandoned Carter’s attempt at merit-based reforms and increased White House control of nominations relative to Congress, a practice continued by President George H.W. Bush (pp.150-156).
The pendulum swung back toward the legislature during the Clinton administration, with the president seeking advice from Republicans in some cases. Sollenberger discusses in some detail President Clinton’s consultation with Senator Orrin Hatch (R-UT) with regard to his Supreme Court nominees, emblematic of the president’s willingness to cooperate with both the Senate and partisan opponents (pp.158-159). This may surprise some [*671] readers given Clinton’s difficulty achieving the confirmation of several high-profile cabinet and judicial nominees. Sollenberger places President George W. Bush somewhere between Clinton and his immediate Republican predecessors, in his eagerness to increase White House authority in appointments but also aware of political realities demanding that Democrats be recognized. Within this discussion is an examination of the “Gang of Fourteen” compromise and its consequences, an event that may be idiosyncratic or represent a shift toward increased bipartisan cooperation (pp.166-167).
Unfortunately, Chapter 8 is generally limited to a discussion of judicial selection. More attention to cabinet and bureaucratic posts would have been appreciated, as they receive far less attention from scholars than the federal courts. Sollenberger does, however, provide a valuable early examination of the use of recess appointments by George W. Bush to bypass legislative dissent. The fact that this tactic has usually been successful may show future presidents its utility in bolstering executive power in the pre-nomination process.
The author presents his analyses and conclusions in Chapter 9, revisiting many themes introduced in the introduction and Chapter 1. Sollenberger asserts that presidents favor compromise to conflict, and that the pre-nomination process is influenced by both the chief executive and legislative input as the two reach a mutually beneficial arrangement. The role of legislators varies with the strength of that chamber’s dominant personalities. Presidents behave in accordance with their goals – nominees are chosen to secure power, favor, or legislative accomplishments depending on the circumstances. Congress, however, uniformly reacts negatively when ignored.
Sollenberger concludes the book by discussing the modern pre-nomination process in relation to historical norms, republicanism, and the system of checks and balances established by the Constitution. He describes a system created through practice, with the relationship between the involved parties changing with their political and practical circumstances. He argues that efforts by the House and the Senate to maintain prominence in the pre-nomination process are justified as preserving minority rights and defends the use of holds, blue slips, filibusters, and specification of qualifications as means to accomplish that end. This, he claims, is consistent with republican principles because it assures the people’s representatives a voice in the selection of government officials. Sollenberger rejects a merit system as at odds with “democratic impulses” and civil service reformers as distrusting of “anyone or anything outside the executive branch” (p.182). Not surprisingly, Sollenberger rejects the unitary executive theory and dismisses its proponents’ argument that history is on their side. Indeed, there is little evidence in this text to support the notion that presidents do or should dominate the pre-nomination process.
Despite its many strengths, THE PRESIDENT SHALL NOMINATE will vary in the extent to which it satisfies particular audiences. It excels as a work of political history, and is obviously the product of meticulous and admirable [*672] research. However, social scientists may be dissatisfied by its lack of general explanation. Description is emphasized more than analysis with the exception of Chapter 9. There is only limited discussion of the circumstances, goals, or personal attributes (of the president or prominent legislators) associated with particular brands of appointment politics. Legal scholars may be interested in Sollenberger’s discussion of the Appointments Clause but find it to be less than novel. Including the argument against originalism, that there was dissent among the Founders, remains justified for the benefit of readers new to the debate. It is probably unfair to condemn Sollenberger for these omissions, as his is a historical study rather than a test of theoretical expectations or exercise in legal argument.
Sollenberger introduces several topics that may be of interest to scholars. The removal of appointees, obviously related to the availability of appointed positions, is given attention throughout the text but merits further exploration. The role of policy entrepreneurs in institutional reform is also invoked, though not discussed at length, as are the sources and consequences of institutional innovation. This text also serves as an informative study of attempted and successful civil service reforms, each of which altered the relationship between the executive and legislative branches. Overall, THE PRESIDENT SHALL NOMINATE is a welcome addition to scholarship on Congress, the Presidency, and the appointments process. It is a valuable resource for scholars of appointment politics throughout American history, particularly those whose interests are not limited to the federal courts.
Gerhardt, Michael J. 2003. THE FEDERAL APPOINTMENTS PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS. Duke University Press: Durham, NC.
MacKenzie, G. Calvin. 2001. INNOCENT UNTIL NOMINATED: THE BREAKDOWN OF THE PRESIDENTIAL APPOINTMENTS PROCESS. Brookings Institution Press: Washington, DC.
© Copyright 2008 by the author, Richard L. Vining.