The Federal Appointments Process: A Constitutional and Historical AnalysisAlthough the federal appointment of U.S. judges and executive branch officers has consistently engendered controversy, previous studies of the process have been limited to particular dramatic conflicts and have tended to view appointments in a vacuum without regard to other incidents in the process, other legislative matters, or broader social, political, and historical developments. The Federal Appointments Process fills this gap by providing the first comprehensive analysis of over two hundred years of federal appointments in the United States, revealing crucial patterns of growth and change in one of the most central of our democratic processes. Michael J. Gerhardt includes each U.S. president’s performance record regarding appointments, accounts of virtually all the major confirmation contests, as well as discussion of significant legal and constitutional questions raised throughout U.S. history. He also analyzes recess appointments, the Vacancies Act, the function of nominees in the appointment process, and the different treatment received by judicial and nonjudicial nominations. While discussing the important roles played by media and technology in federal appointments, Gerhardt not only puts particular controversies in perspective but also identifies important trends in the process, such as how leaders of different institutions attempt to protect—if not expand—their respective prerogatives by exercising their authority over federal appointments. Employing a newly emerging method of inquiry known as “historical institutionalism”—in which the ultimate goal is to examine the development of an institution in its entirety and not particular personalities or periods, this book concludes with suggestions for reforms in light of recent controversies springing from the longest delays in history that many judicial nominees face in the Senate. Gerhardt’s intensive treatment of the subject will be of interest to students and scholars of political science, government, history, and legal studies. |
Contents
THE ORIGINAL UNDERSTANDING OF THE FEDERAL APPOINTMENTS PROCESS | 15 |
The Founders Deliberations on Allocating | 17 |
The Senates Prenomination Role | 29 |
The Constitutional Limits on Presidential and Senatorial Direction in the Appointments Process | 34 |
THE STRUCTURE OF THE FEDERAL APPOINTMENTS PROCESS | 39 |
The Presumption of Confirmation | 41 |
Agenda Setting | 43 |
Consensus | 44 |
The Publics Participation in the Federal Appointments Process | 213 |
Interest Group Participation in the Federal Appointments Process | 217 |
The Dilemma of the American Bar Association | 229 |
The Significance of Informal Advisers in the Appointments Process | 231 |
THE IMPACT OF MEDIA AND TECHNOLOGY ON THE FEDERAL APPOINTMENTS PROCESS | 234 |
The Media as Educator | 235 |
The Media as Participant | 242 |
The Media as Ombudsman | 248 |
HISTORICAL CHANGES AND PATTERNS | 45 |
Social Political and Historical Developments | 50 |
Confirmation Patterns | 74 |
THE PRESIDENTS ROLE IN THE FEDERAL APPOINTMENTS PROCESS | 81 |
The Significance of Institutional Analysis | 87 |
The Presidential Learning Curve Regarding the Challenges Posed by the Appointments Process | 101 |
The Relationship between Presidents Nominating Authority or Selection Criteria and Control of Executive Performance and Judicial Policymaking | 128 |
THE ADVICE AND CONSENT OF THE SENATE | 135 |
Evaluating Senate Performance Generally | 136 |
Analyzing Senatorial Powers to Influence Federal Appointments | 143 |
Other Significant Patterns and Practices | 162 |
THE NOMINEES FUNCTIONS | 180 |
The Roles of Nominees | 181 |
Nominees as Active Agents on Their Own Behalf | 194 |
What Kinds of People Qualify as Nominees? | 201 |
PUBLIC AND INTEREST GROUP PARTICIPATION IN THE APPOINTMENTS PROCESS | 212 |
THE NEED FOR REFORM | 253 |
Preliminary Clarifications | 254 |
General SeparationofPowers Concerns in Reforming the Federal Appointments Process | 260 |
The Feasibility of Legislating Minimal Qualifications | 273 |
Influencing the Terms of Debate | 280 |
The Possibility of Reducing Some Conflict in the Appointments Process | 285 |
Enhancing Public Participation by Means of the Internet | 286 |
ON THE FUTURE OF JUDICIAL SELECTION STRUCTURE RULES AND NORMS | 290 |
Rethinking the Constitutional Structure for Judicial Selection | 291 |
Procedural Rules and Norms | 298 |
Postscript | 325 |
Afterword | 341 |
Notes | 345 |
397 | |
Other editions - View all
Common terms and phrases
Abe Fortas actors administration African American Appointments Clause attorney authority Bork Bork's Bush Bush's cabinet campaign candidates Carter Chief Justice choice Circuit civil rights Clarence Thomas Clinton confirmation hearings confirmation process Congress constitutional criteria critical decision Democrats dent EE/MP executive federal appointments process federal judges formal Helms Historical institutionalism ideology impeachment influence instance institutional interest groups Jackson Jesse Helms John judgeships judicial appointments judicial nominees judicial selection Judiciary Committee Lani Guinier leaders legislative Major Players ments Moreover nomi nomination nominee's norms Notes to Chapter opposition particularly pointments political parties popular Position President President Clinton's president's presidents and senators question Reagan recess appointments Reforming the Appointments rejected Republican senators Robert Bork Roger Taney Roosevelt secretary sena Senate confirmation Senate's senatorial courtesy significant Supreme Court Supreme Court nominees Thomas tion Truman vacancy vote White House William Withdrawn Zoë Baird