The Federal Appointments Process: A Constitutional and Historical Analysis

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Duke University Press, Aug 22, 2003 - Law - 406 pages
Although 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.
 

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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
Index
397
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About the author (2003)

Michael J. Gerhardt is Professor of Law at the College of William and Mary School of Law. His other books include The Federal Impeachment Process: A Constitutional and Historical Analysis and Constitutional Theory: Arguments and Perspectives, each in their second edition.

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