by Mitchel A. Sollenberger. Durham, N.C.: Carolina Academic Press, 2011. 284 pp. Paper $40.00. ISBN: 9781594607851.
Reviewed by Michael R. Dimino, Sr., School of Law, Widener University (Associate Professor). E-mail: mrdimino [at] mail.widener.edu.
In FEDERALIST #47, James Madison explained that to protect against the “tyranny” that results from placing all governmental power “in the same hands,” the Constitution not only separates the powers of government, but it equilibrates those powers. If powers are nominally separate, but one branch can direct the behavior of another, then the liberty-preserving function of the separation of powers is undermined. Thus, each branch must not only have powers assigned to it, but it must have the “constitutional means,” in the words of FEDERALIST #51, “to resist encroachments” by the other branches. The objective is to have a government whose constituent parts “keep each other in their proper places.”
Congress’s thirst for power was a particularly worrisome prospect, as Madison recognized when he warned in FEDERALIST #51 that “[i]n republican government, the legislative authority necessarily predominates.” If, as he argued in #47, “Congress is everywhere drawing power into its impetuous vortex,” the President and the courts must have the ability to resist congressional pressure—particularly in areas requiring the cooperation of multiple branches.
One such area is the power over appointments. Article II of the Constitution grants the President the power to “nominate, and by and with the Advice and Consent of the Senate, [to] appoint” federal judges and other officers of the United States. As Madison foresaw, whenever one branch’s power is checked by another’s, conflicts are likely to develop concerning the scope of each branch’s authority. And so it has been with the Appointments Clause.
Sollenberger argues for a strengthening of congressional power over appointments through the use of what he terms “democratic controls.” His book is both an historical discussion of the ways such controls have been used to exert congressional influence over, and concerning, courts, and an argument for their vigorous employment to counter presidential appointment authority.
The historical analysis is thoroughly researched, valuable, and even entertaining. Likewise, the five appendices, which include the White House Personal Data Statement Questionnaire; the Executive Branch Personnel Public Financial Disclosure Report; the Senate Judiciary Committee Questionnaire for Judicial Nominees; the Senate Judiciary Committee’s Financial Disclosure Report; and the infamous “Blue Slip” Senators use to indicate approval of, or opposition to, judicial nominees, are conveniently compiled and will be helpful to anyone who wishes to understand the hoops through which nominees must jump. Unfortunately, Sollenberger’s normative argument - promoting congressional, rather than presidential, control of the appointments process - is poorly supported by his historical analysis and is too often conclusory.[*53]
Despite the book’s title, the first chapter is devoted not to the appointments process, but to congressional laws that, in one way or another, affected the judiciary in a way arguably inconsistent with judicial independence. Most especially, Sollenberger discusses various laws that eliminated judgeships. Those laws include the Jeffersonian Republicans’ repeal of the Judiciary Act of 1801, the 1863 reorganization of the courts in the District of Columbia, and the 1913 abolishment of the U.S. Commerce Court. The recent norm, as Sollenberger notes, is to transfer sitting judges rather than to eliminate their jobs when Congress decides that it is appropriate to reorganize the court system.
It is unclear why this chapter was included in the book. It does illustrate that Congress has exercised power to “shape the structure of the federal courts” (p.32), but, as Sollenberger details, Congress itself has been divided about the constitutionality and the wisdom of eliminating existing judgeships. This history, therefore, demonstrates that Congress has exerted power that might intimidate judges, but it also demonstrates that such exercises of power have been both controversial and partisan.
Chapter 2 introduces the reader to the constitutional provisions governing appointments. Those provisions include the Appointments Clause itself, giving power to the President to nominate and to appoint if the Senate gives its “advice and consent” (Art. II, § 2, cl. 2); the Recess Appointments Clause, giving the President the “Power to fill up all Vacancies that may happen during the Recess of the Senate” with commissions that expire at the end of the next senatorial session (Art. II, § 2); and the Ineligibility Clause, which renders a Member of Congress ineligible to any office “which shall have been created, or the Emoluments whereof shall have been encreased during” the time for which he was elected (Art. I, § 6, cl. 2).
As Sollenberger notes, the power to issue recess appointments is a powerful weapon for Presidents. When exercising the power, the President is able to bypass a hostile Senate (at least temporarily), and install a judge who might not have been confirmed. For this reason, recess appointments can anger the Senate and trigger a negative congressional response. Such a response might include a decreased willingness to confirm that nominee or others, or it might involve decreased congressional cooperation in areas unrelated to judicial nominations.
In later chapters, when Sollenberger assesses congressional power to influence appointments, he praises congressional attempts to use whatever influence they can employ. Sollenberger defends filibusters, blue slips, holds, and senatorial courtesy as legitimate attempts by Congress to exert influence through its power to make rules for its own proceedings. After all, nothing in the Constitution explicitly requires Congress to “consent” to—or even to vote on—judicial appointments.
Therefore, one might have expected Sollenberger to defend presidential use of recess appointments as a check against excessive (seemingly incessant) delays, during which the Senate purports to be investigating the suitability of nominees. Instead, Sollenberger criticizes the use of this power as “disrupt[ing] the democratic controls embodied in the judicial appointment process” (p.38).
But this begs the question. The recess-appointment power, as suggested above, might well be considered one of those democratic controls—a check on a Senate [*54] too willing to jeopardize the effective functioning of the judiciary and the public’s access to justice because of a disagreement with the President’s political goals or a Senator’s conviction that some issue he cares about should be given priority over everything else. Sollenberger argues that the Senate should use the means at its disposal to discourage recess appointments, most particularly refusing to confirm nominees who have been granted recess appointments. He also seems to approve of other measures to discourage recess appointments, including prohibitions on paying the salaries of recess appointees and the use of pro forma sessions that preclude the recesses that are the precondition for recess appointments. (In January 2012, President Obama used the recess-appointments power despite the Senate’s pro forma sessions. Supporters of the President argue that the Senate’s pro forma sessions, during which no business is conducted, are not enough to disrupt what would otherwise be a senatorial recess.)
Although Sollenberger thus supports strong action on the part of Congress to protect its institutional authority, nowhere does he promote a similarly hard-line approach by the President. Senatorial obstructionism, Sollenberger argues, is simply the consequence of resting the confirmation power in the Senate, and is normatively good in that it involves legislators rather than permitting the appointments process to be controlled by the executive. As to exercises of presidential authority, however, Sollenberger cautions that “[p]residents need to work closely with lawmakers and not use the judicial appointment process to punish political opponents” (p.153).
Chapter 3 is a diversion from modern appointments controversies; it considers statutory restrictions on the persons eligible for judicial appointments. Virtually the entire focus of the chapter is on requirements that individuals filling certain judicial offices reside in a particular area. As with Chapter 1’s consideration of congressional attempts to eliminate courts, Chapter 3 provides an interesting history whose lessons for the future are ambiguous. (Of particularly questionable value is the eleven-page discourse on whether the statutory residency requirement should have been interpreted to apply to district judges in the District of Columbia.) Sollenberger’s point appears to be that Congress has already limited the class of persons who can be nominees, so any further aggrandizement of the appointments power should be accepted. But, as the chapter itself makes clear, the residency restrictions themselves have been controversial even within Congress, and in any event they are of dubious value in debating Congress’s appropriate role in evaluating specific judicial nominees.
Chapters 4-7 more obviously concern the modern appointments process. The book details the steps in the process, from before the nomination through the final vote and occasionally reconsideration. Sollenberger’s thesis is that these steps assist the Senate in evaluating nominees and thus ultimately inure to the benefit of the country.
Sollenberger characterizes his argument as promoting “democratic” ideals, but in reality he simply is promoting one contestable and controversial vision of democracy. He disparages presidential authority as undemocratic even though the electoral process for the executive as well as the legislative branch is democratic. Further, Sollenberger makes too little effort to confront the problems that [*55] congressional control over appointments has produced; some of those problems, such as the ability of a minority of Senators to obstruct appointments, interfere with majority rule and are thus at least arguably undemocratic themselves.
At the very end of the book, Sollenberger seems to admit this paradox implicitly, as he curiously praises “democratic controls” that prevent up-or-down votes on judicial nominees. He argues that such controls are beneficial because they “restrain popular impulses” and interfere with the establishment of “a democratic government” (p.194), which interference he takes to be consistent with the framers’ construction of the Senate as an institution that permits delays in the legislative process so that public passions may be abated. But it is odd in the extreme to promote “democratic controls” that interfere with “a democratic government.”
Sollenberger praises the Senate as more democratic than the executive because its members are both directly elected and more numerous, permitting them to “represent a much broader interest of people” than can the President. But it is only when the Senators’ constituencies are combined that the Senate can be thought to be representative of the nation as a whole. Each Senator individually represents only one state, and the interests of that state may be contrary to the interests of the rest of the country.
The Senate’s claim to greater democratic legitimacy is even more dubious due to the disproportionate power of members of the Senate Judiciary Committee and the majority leader. The Committee provides valuable informational and screening functions, but that screening function necessarily means that the screened-out Senators play a reduced role.
Accordingly, the question is not whether the entire Senate is more democratically representative than the president, but whether the Senators who exercise the so-called “democratic controls” are supporting or undermining democracy when they exert disproportionate power to thwart the will of elected officials who represent much more of the American public.
The most problematic aspects of the “democratic controls” lauded by Sollenberger result from this difference in presidential versus senatorial constituencies. Consider some Senators’ questionable uses of holds. President Reagan’s nomination of Stephen S. Trott to the Ninth Circuit was delayed because Senators Metzenbaum and Kennedy wanted to force the administration to release documents about the possible misuse of funds by an ambassador (p. 131). Two of President G.H.W. Bush’s judicial nominations in Alabama were delayed by Senator Jeffords until the President agreed to nominate Jeffords’s choice for a district judgeship in Vermont (Ibid.). And the holds can approach the absurd:
“In 1997, [President] Clinton nominated Joe Dial to the Commodity Futures Trading Commission (CFTC). In a clash with the administration, Senator Carol Moseley-Braun (D-IL) placed a hold on Dial. In response, Senator Phil Gramm (R-TX), a supporter of Dial, blocked two judicial nominees from Moseley-Braun’s home-state. This caused Senator Dick Durbin (D-IL) to prevent the Senate’s consideration of a Republican backed education bill until Gramm’s hold was lifted. Eventually the standoff ended when Clinton agreed [*56] to nominate another Republican to the CFTC and Gramm lifted his hold on all of [sic] Illinois judicial nominations ‘who were easily confirmed in early April 1998’” (pp.131-32).
Even aside from the use of holds, Senators’ disproportionate power over appointments affecting their home states can interfere with the ability of the country’s democratic majority to function (pp.85-86). Perhaps most troublesome, but merely emblematic of the power possessed by certain Senators who represent only a portion of the nation, “Senator William V. Roth Jr. (R-DE) secured the nomination of his wife, Jane Richards Roth, to a district judgeship in Wilmington, Delaware” (p.85). Sollenberger presents these examples to illustrate that the Senate has exerted power over nominations through the advice-and-consent authority, but he does not examine them in conjunction with his normative claim that the use of such power is beneficial to democracy.
Professor Sollenberger might have done well to distinguish between different types of “democratic controls”— or, perhaps more accurately, between controls that advance democratic influence in nominations and those that obstruct it. In the former category, we might consider measures to provide the Senate with information about nominees. While the questionnaires and hearings, for example, are labor-intensive, time consuming, and may dissuade people from accepting nominations, they do advance the Senate’s ability effectively to execute its advice-and-consent function. As a result, they appear democracy-enhancing, in that they permit the legislative branch to participate meaningfully in the appointments process. (To say that such measures are potentially democracy-enhancing is not to say that they necessarily produce beneficial or democratic results. As Madison noted in FEDERALIST #48, Congress can control the other branches through “complicated and indirect measures,” and Sollenberger’s catalogue of procedural obstacles to appointments well illustrates this possibility. Hearings, for example, may serve an informational interest, but they may also simply present an opportunity for Senators to show-boat for the press and constituents. Thus, questionnaires and hearings enable the Senate to carry out its duties responsibly, but they may also provide the Senate with an “indirect measure” to pressure the executive.)
On the other hand, norms that privilege the views of a handful of Senators over the rest of the chamber, such as blue slips, senatorial courtesy, holds, and the like, do not represent senatorial attempts to fulfill their responsibilities. Rather, by permitting a minority of Senators to halt appointments, such measures frustrate both the President and the senatorial majority that wishes to move forward. Democracy is not enhanced simply because presidential power is obstructed.
To be sure, no single institution of government should be permitted to dominate the others, and the dangers presented by such domination led the framers to separate and equilibrate powers between the three branches. But it does little good to state the advantages of separation of powers or the danger of the accumulation of power unless such statements are accompanied by an explanation of why a particular distribution of power is likely to cause those advantages or dangers. Sollenberger’s tiresome refrain that the appointments power should not be “dominated” by the President is one with [*57] which most of us can agree, but it is not a substitute for an argument about why filibustering nominees, for example, is necessary to guard against such presidential domination.
In the end, power struggles between the President and Congress over judicial appointments have been, and will be, resolved the same way that other political tugs-of-war are resolved: by compromise and accommodation, rather than by doctrinaire reliance on constitutionally granted authority. Perhaps it is in that process of compromise and accommodation, carried out with the next election looming, that we see the greatest influence of “democratic controls.”
Copyright by the Author, Michael R. Dimino, Sr.