The Framers enacted this provision to prevent the president from acting like a king. Alexander Hamilton, writing as “Publius” in the Federalist Papers (Nos. 76 and 77), justified Senate confirmation as a way to ensure that people of high integrity are appointed to public office. Otherwise, he argued, the president might appoint “unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” A president might even “bring forward . . . candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him.” Senate confirmation was meant to prevent situations that often arose in the British government wherein incompetent friends of the monarch would be appointed to public office mainly as a way to enrich themselves or extend the monarch’s influence with other important officials.
These concerns were justified in 1789. No large republic then existed, and many small republics had devolved into oligarchy or monarchy because of insufficient checks on official power. The nation’s large territory, combined with slow transportation and communication, rendered constant legislative supervision of the executive impractical. Moreover, the president was not democratically elected at the time. The electoral college that elevated him was often composed of electors chosen by state legislatures rather than the people. The Framers feared a strong, unconstrained executive who could then use offers of office and money to corrupt republican institutions, as the British monarch did. Senate confirmation and impeachment limited what such a person could do.
It’s ludicrous to think this could happen today. Presidents arise from an extensive democratic process that makes them directly responsible to the people. They build political coalitions from diverse groups that seek to use public power to advance their agendas. These factors constrain the president far more than Senate confirmation. These considerations, along with the 22nd Amendment, which limits presidents to no more than two full terms, means there is little reason to fear that a president can turn the office into a personal fief wielding power without constraint.
Today, the Senate confirmation requirement primarily acts to weaken the president’s ability to enact his agenda. As of 2012, more than 1,200 positions required Senate confirmation. Given modern requirements for disclosure and background checking, senators simply cannot confirm these appointees quickly enough for them to take office shortly after a president’s inauguration. Posts can go unfilled for months or even years. This keeps a president from doing what he was elected to do.
The broad scope of modern government compounds this problem. In 1789, the United States did not run massive federal programs or regulate large sectors of the economy. Today, it does, and that means presidents campaign on promises to make changes in these important activities. Depriving a president of the personnel needed to run these agencies means old policies that may have been explicitly rejected by voters during the election remain in place. That’s not good for democracy.
The growth of the federal government also means there are many important positions that do not require Senate confirmation. The president’s chief of staff, often said to be the second-most-powerful person in government, oversees Senate-confirmed Cabinet officials yet does not require confirmation. Biden’s chief of staff, Ron Klain, said Wednesday night that Tanden would be appointed to such a position should the Senate deny confirmation. What’s the point of rejecting her from one position only to have her reappear in another, perhaps more powerful job?
Senate confirmation of judges, who serve for a lifetime and interpret our laws and Constitution, ensures that judicial power is wielded only with broad public consensus. For everything else, the president should get to pick his staff and let the people judge whether they like the result.