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A Gallery of Might-Have-Beens

There's More Than One Way to Fail the Senate Confirmation Test

By Sarah A. Binder
Sunday, April 24, 2005; Page B01

Pity John Bolton. As a rule of thumb, senators give the president the benefit of the doubt when he chooses people for the executive branch or his diplomatic team. Although the Constitution gives the Senate responsibility for reviewing and confirming presidential appointments (the famous "advise and consent" provision), nominees for executive branch jobs are rarely subjected to the sort of intense scrutiny Bolton has endured.

The Senate has rejected only nine cabinet appointees -- ever. And while the U.N. ambassadorship for which Bolton has been proposed is not cabinet level, no one nominated for that post has ever been blocked. Even moderate Republican Sen. Lincoln Chafee of Rhode Island, who disapproves of much of what Bolton stands for, told National Public Radio last week, "The president gets to choose his people. He gets to put his people where he wants them. And it's a very high threshold for me to deny him that power."

Same Issue, From George W. to George W.

Ever since the Constitution's adoption, the Senate has exercised its advise and consent role by occasionally withholding its consent. Here are some landmark battles over the president's power to appoint judges and executive branch officials.


First executive branch appointee rejected:

The Senate surprised President George Washington by rejecting the nomination of Benjamin Fishbourn to run the port of Savannah in Georgia. Fishbourn was singled out from a list of 102 prospective port collectors, naval officers and surveyors. His offense: He had aroused the enmity of James Gunn, one of Georgia's first senators. By blocking the nomination, Gunn established the precedent of "senatorial courtesy." To this day, senators are consulted on presidential appointees to serve in their home states, such as district judges and marshals.


First Supreme Court nominee rejected:

The Senate, on a 14-10 vote, rejected Washington's appointment of John Rutledge to be chief justice. Rutledge, chief justice of the South Carolina supreme court and former associate justice of the U.S. Supreme Court, angered Federalists by opposing the Jay Treaty, which was meant to resolve outstanding issues with England. Critics questioned his sanity, and Rutledge later tried to take his own life.

From 1844 to 1853, the Senate rejected seven of 12 Supreme Court nominees.


First Cabinet nominee rejected:

In 1809, President James Madison dropped plans to appoint the Swiss-born Albert Gallatin, Thomas Jefferson's secretary of the Treasury, as his secretary of state in the face of Senate opposition.

But the first rejection of a cabinet nominee didn't come until June 1834, when the Senate opposed by a 28-18 vote President Andrew Jackson's nomination of Roger B. Taney as Treasury secretary. Taney had been the architect of Jackson's plan to dismantle the Second Bank of the United States. The Senate later blocked Taney's appointment as associate justice of the Supreme Court, but then approved his appointment as chief justice.

1843 Most often rejected nominee:

After the Senate rejected President John Tyler's choice of Caleb Cushing for secretary of the Treasury, Tyler stubbornly sent back Cushing's name twice more -- and each time, it was defeated by wider and wider margins. (Thirty years later, Senate opposition forced President Ulysses S. Grant to withdraw Cushing's nomination to be chief justice of the United States.) The Senate also voted down Tyler's picks for secretary of the Navy and secretary of War, as well as four of his Supreme Court nominees.


Power of the president to fire cabinet officials:

Congress passed, over President Andrew Johnson's veto, the Tenure of Office Act. It prohibited the president from removing officials appointed with the Senate's advice and consent, unless he first obtained Senate approval. Congressional supporters of War Secretary Edwin M. Stanton intended this law to insulate him against removal, but five months later, Johnson ousted Stanton and appointed Gen. Ulysses Grant. Even though Grant later relinquished his post to Stanton, the House approved articles of impeachment against Johnson for violating the act. In 1926 the Supreme Court declared the Tenure of Office Act unconstitutional, preserving presidents' rights to dismiss all appointees except regulatory commission members and other fixed-term officeholders whose independence would be violated by removal.


The Senate's revenge:

Grant named Ebenezer Hoar to the Supreme Court. As attorney general, Hoar had offended many senators by insisting on highly qualified judicial appointees -- a standard that left little room for political patronage considerations. Hoar's stinging criticism of several candidates still angered their senatorial patrons. The Senate rejected Hoar.


First Supreme Court nominee summoned to testify before Congress:

The Senate called Supreme Court nominee and former attorney general Harlan Fiske Stone before its Judiciary Committee to answer questions about prosecutorial misconduct in the investigation of a senator. Of 24 Supreme Court nominations between John Parker in 1930 (rejected) and Abe Fortas for chief justice in 1968 (withdrawn), 17 were confirmed unanimously and the rest with little opposition.


Interest group rules:

The Senate, under Democratic control, rejected President Harry Truman's nomination of Leland Olds to a third term on the Federal Power Commission. Olds's support for federal regulation of oil and gas riled industry. Lyndon B. Johnson, then a freshman senator from Texas, led the attack.


They liked Ike, not his nominee:

Personality matters. In this year, a heavily Democratic Senate narrowly rejected President Dwight D. Eisenhower's nomination of Lewis Strauss, a crusty former admiral, to be Commerce secretary. Strauss had antagonized senators as head of the Atomic Energy Commission and had demanded to cross-examine hostile witnesses -- including senators.

1969 and 1987

The conservative-liberal divide:

In 1969, the Democratic-controlled Senate rejected two of President Richard M. Nixon's Supreme Court choices Clement F. Haynsworth Jr. and G. Harrold Carswell. The conservative nominees, both appeals court judges, faced strong opposition from civil rights groups. In 1987, by a vote of 58 to 42, the Senate rejected President Ronald Reagan's nomination of conservative scholar and judge Robert Bork to the Supreme Court.


Modern cabinet (and other) woes:

The Democratic Senate rejected former Texas senator John Tower's nomination to be President George H.W. Bush's defense secretary in 1989 after questions were raised about womanizing, abuse of alcohol and relationships with defense contractors.

President Bill Clinton lost several confirmation battles. In 1993, his choice for attorney general, Aetna general counsel Zoe Baird, withdrew after a furor over her failure to pay Social Security taxes for a nanny and chauffeur who lacked work papers. That same year, he withdrew his nomination of law professor Lani Guinier for assistant attorney general for civil rights, saying he had been unaware of her controversial views on how to enhance minority representation.

In 1994, retired Adm. Bobby Ray Inman, stung by press and Senate criticisms of his record, asked Clinton to withdraw his nomination as secretary of Defense.

In 1997, Anthony Lake, Clinton's national security adviser, dropped his bid to become CIA director, after he was torpedoed by opponents who viewed Lake as too dovish for the job.

Nanny problems are bipartisan. President George W. Bush's 2004 choice for Homeland Security chief, Bernard B. Kerik, dropped out after conceding he did not pay taxes on an illegal nanny. In 2001 Bush's choice for labor secretary, Linda Chavez, withdrew her name after revelations that she housed an illegal alien.

SOURCES: Senate Historical Office; "Legislative Power Over Appointments and Confirmations" by Richard Alan Baker in the Encyclopedia of the American Legislative System, Vol. III; and the Brookings Institution's "A Survivor's Guide for Presidential Nominees."

Yet, in Bolton's case, that threshold may have been crossed. New allegations call into question his fitness to serve in the U.N. job. At the urging of three moderate Republican senators, including Chafee, the chairman of the Senate Foreign Relations Committee has postponed a vote on his nomination to allow time for the charges to be investigated.

There are only two factors that can stop a presidential nominee for the executive branch -- and both may apply to Bolton. The first he shares with Lani Guinier, among others. She was the lawyer who was selected by President Bill Clinton to fill the nation's top civil rights post and who was pilloried for her liberal ideas on minority representation and forced to withdraw. Like Guinier, Bolton has drawn fire not for who he is but for what he actually thinks.

The second is a matter of ethical or legal lapses. Indiscretions of this kind can at times prompt nominees to withdraw even before the Senate officially weighs in. That's what relegated names like Zoe Baird, Bernard Kerik and Linda Chavez to historical footnotes. In Bolton's case, allegations about his flair for interpersonal relations may become his undoing. Did he really argue with a U.S. Agency for International Development worker in a Moscow hotel, throw things at her in a hallway and bang on her door in the middle of the night back when he was in the private sector? Has he torpedoed the careers of those who disagreed with him in government? (Bolton said he sought the transfer, not dismissal, of people in whom he had lost confidence.)

It would be bad enough if he hassled a person working for USAID in Kyrgyzstan. But Bolton also appears to have crossed his former boss at the State Department, Colin L. Powell, who did not sign a letter from other former secretaries of state endorsing him for the U.N. post.

If the Bolton deliberations seem fractious, just wait for the ones on judicial appointments, starting with two controversial choices the Judiciary Committee sent to the Senate floor last week. Senators are much less likely to give the president a pass when he proposes candidates to the federal bench. Over the past decade, the Senate has blocked dozens of nominees slated for the federal appellate courts, as Democrats and Republicans target those deemed too extreme.

Why does the Senate hold executive and judicial nominees to such different standards? For good reasons. First, judges serve for life, unlike executive appointees who serve for fixed terms or at the will of the president. Lifetime tenure means that the policy consequences of confirming a judicial nominee can far exceed the consequences of confirming an executive nominee, long outliving a presidential administration.

Second, the breadth of policy that federal judges can affect far exceeds that of a typical executive branch appointee, especially with the rise of litigation to settle innumerable policy disputes. The decisions of federal judges are subject to review by higher courts, but the Supreme Court's shrinking docket makes it less likely that appellate court decisions will be reversed. Decisions of executive appointees are subject to scrutiny and reversal by the White House or legislators, who have ample opportunity to oversee the actions of the bureaucrats they confirm. Judges are independent.

Third, confirmation politics for judges and bureaucrats are fundamentally different. Appointees bound for the bureaucracy usually have things to offer in exchange for senators' votes. California Democrat Barbara Boxer has agreed to vote to confirm Stephen Johnson as head of the Environmental Protection Agency after he said he would cancel a controversial pesticide program. Now Delaware Democrat Thomas Carper has held up Johnson's confirmation until he releases a cost-benefit analysis of competing clean air initiatives. With concessions to grant, future bureaucrats can defuse pockets of Senate opposition. Future judges have no such carrots to give out.

Even so, executive branch nominees can't always convert senators to their side. Ethical missteps or personal indiscretions are what most commonly doom confirmation. For example, former senator John Tower, nominated in 1989 by President George H.W. Bush to be secretary of Defense, became embroiled in reports of improper behavior involving alcohol and women, and inappropriate relationships with defense contractors. It proved to be a turning point. With more extensive vetting of nominees' pasts, changing public attitudes toward the private lives of public figures, and the ability of politically motivated groups to dredge up information about people's pasts, such episodes are more commonplace today than ever.

If Bolton's nomination ultimately fails, it will be due in part to Democrats' success in painting him as a symbol of conservative excess, pointing to his disdain for the very organization where he will be working, and his attitude toward the very countries with which he will need to collaborate. The Democrats' efforts echo the campaign by Guinier's opponents, who succeeded in painting her as a symbol of the radical left based on her views about how to enhance minority representation. To avoid being tarred by her controversial views, Clinton withdrew her nomination. Whether fair or unfair, on those rare occasions when the tag of extremist sticks, the Senate treats executive branch nominees more like judicial ones and bureaucratic bargaining cannot save them.

In Bolton's case, ideology may not be enough for his foes to secure his defeat. So last week the case against him shifted to highlight questions about his character.

Should the Senate hold judicial and executive branch nominees to different standards? These differences after all are matters of practice, rather than constitutional or formal design. The Constitution combines all categories of appointments into a single advise and consent clause, providing no basis (other than lifetime tenure) for treating the two sorts of nominations differently. This does not mean that the framers expected the Senate to rubber-stamp the appointments of both bureaucrats and judges.

Throughout most of the Constitutional Convention, delegates gave the Senate the sole power of appointment. Only late in the convention did the framers decide that the Senate should share the appointment power with the president, suggesting that the framers expected vigorous Senate review of the president's nominees. It's no surprise then that the very first Senate in 1789 put advise and consent to use, rejecting President George Washington's nomination of Benjamin Fishbourn as naval officer for the port of Savannah, Ga.

Arguably, federal judges, with lifetime tenure and broad policy reach, merit more rigorous review than port officials or even U.N. ambassadors. The expectation of judges' independence requires that the Senate scrutinize, rather than rubber-stamp, judicial nominees. Otherwise, the Senate forfeits to the president an unfettered power to shape the nation's constitutional and legal direction.

In this context, the efforts of Republican Senate Majority Leader Bill Frist of Tennessee to ban filibusters of judicial nominations is ironic. Republicans have vowed that when they go "nuclear" to stop Democrats from going too far in reining in the president's power to appoint judges, other appointments and bills will remain fair game for filibusters. If so, expect Democrats to exploit the rules of the game more aggressively to block executive branch nominees they would otherwise have been inclined to confirm. Obstruction of presidential nominees could thus become more prevalent rather than less. The nuclear analogy may be too apt, promising all-out war and mutual destruction.

Putting an end to filibusters of judicial nominations may seem attractive to Republicans intent on stacking the federal bench with like-minded conservatives. But by targeting judicial nominees, Republicans risk undermining the deference that senators have historically extended to the president when he selects his executive and diplomatic teams. Rather than giving the president more power over his appointments, senators may unwittingly be taking it away. Neither outcome serves the nation or the Senate terribly well.

Author's e-mail: sbinder@brookings.edu

Sarah Binder is a senior fellow at the Brookings Institution and associate professor of political science at George Washington University.

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