After three of Barack Obama’s nominees for cabinet positions have run afoul of the appointment process for a variety of reasons, most notably their problems in paying their taxes on a timely basis, Jerry Remmers is unhappy with the appointment process. He proposes a new rule:
Select the best and brightest person available with no felony convictions. That’s it. We’re dealing with politicians, after all. Didn’t pay your taxes? No problem.
I disagree with the what I think are the premises for his concern, in fact I think I believe exactly the opposite of what he does.
I don’t believe that anybody is indispensable.
I don’t believe that any appointee has a right to an appointment nor do I believe that any appointer has a right to appoint whomever he or she sees fit.
The provision in the Constitution by which the president makes appointments is in Article II, Section 3:
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he 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: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
The reason that these appointees withdrew their names (presumably) is that they had become politically embarrassing and in all likelihood wouldn’t be confirmed by the Senate.
At any rate here’s a way of amending the Constitution to reflect what Jerry wants to see:
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he
shall nominate, 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: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
or
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he 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.
That’s concise and to the point: give the president plenary power.
“Best and the brightest” is folderol. If we wanted the the best and the brightest, we’d be filling these positions by competitive examination. Or maybe the best and the brightest would be appointing themselves like Napoleon crowning himself emperor.
If that amendment had been in place John Towers would have been appointed Secretary of Defense, Lani Guinier would have been appointed Assistant Attorney General for Civil Rights, and Linda Chavez would have been appointed Secretary of Labor, all of which might have been alright. However, Robert Bork and Harriet Myers both would have been appointed to the Supreme Court which I suspect many, including Jerry, might not have been happy with.
That appointees are the best and brightest by virtue of being appointed is claptrap. At best it’s merely a matter of opinion and, under the amendment above, it would be one man or one woman’s opinion.
Basically, I don’t believe there’s any way of implementing Jerry’s preferences without largely removing it from the political process and that would be an error. Keeping the appointment process within the political process helps to provide support for the appointment and you’ve got to have support to govern.
If you want to reform the process, I suggest that you try your hand at crafting the statute that would effect the reform you want. It can be enlightening.
I’d never advocate drastic changes based upon anomalous events, but to play devil’s advocate, would the results differ greatly under a system in which appointments are made solely by the President? The argument for Presidential discretion is that it makes the President accountable and poor picks will either hurt the President or compel the officer to be fired (at least for non-judicial picks).
Where the grounds for concern are an embarrassment to the President, its not clear that the Senate performs a particularly useful function. I haven’t followed the process closely, but I thought Daschle was going to be confirmed by his former colleagues. I can certainly imagine an alternative world without Senate confirmation where the President would act Daschle to resign due to the embarrassment and distraction his appointment has caused. “Mr. President, do you feel that it is important for people to pay their taxes?”
I equivocate on one point though. In a world without Senate confirmation, would the appointee ever have to disclose their tax returns? If not, the results would be significantly different and the potential appointees might be more troubling than any in memory.
. . . would ASK Daschle to resign. . .
I would reccomend reading David Frum’s current postings on “What Went Wrong in Iraq.” The Bush national security team would certainly qualify as some of the best and brightest, but they failed in their chief role as implementers of the President’s policies. Someone who is grossly negligent in managing their own personal affairs is probably going to be a lousy manager of the country’s affairs.
If it wasn’t clear from the post, I don’t advocate any change in the appointment process and think that the idea is ill-considered. I also disagree with the notion that the Senate should just defer to the president on appointments. Or anything else for that matter.
I think that in a world without Senate confirmation you’d have people cycling in and out of cabinet jobs rapidly. Nomination and appointment would be synonymous. A cabinet officer would be sworn in, then he or she would get scrutiny from the press and/or the public, many would become embarrassments, and they’d be fired.
Or else you’d have presidents holding on to bum appointments just to show they he or she couldn’t be pushed around, not particularly desireable, either, IMO.