Horace Cooper

In the first place, seeing to it that the President retains the prerogatives of the executive is a basic responsibility of the Bush Administration or of any president. One key refrain of Governor Bush and his running mate Dick Cheney during the campaign of 2000 was their commitment to ensure that the power and prestige of the President would not be diminished on their watch. Coming in the wake of the execrable performance of William Jefferson Clinton as president, such a pledge likely resonated with many independents and most Republicans.

Unfortunately the process leading to the nomination of Judge Mukasey is not a sterling example of this commitment. Although not for the first time, Senate Democrats made it very clear that with the Attorney General vacancy they not only would exercise their lawful “advice and consent” role, they went further and took on the nomination role as well. Yet instead of specifically rejecting that role by the Senate it appears that by nominating Judge Mukasey – the choice of prominent Senate Democrats – the White House caved.

Whether responding as political realists or reaching out in an act of comity, sublimating the administration’s priorities for those of the United States Senate is clearly not what the framers intended. It defies a basic principle of executive authority – being energetic – as contemplated by the founders. Alexander Hamilton explains in Federalist No. 70, “Taking it for granted, therefore, that all men of sense will agree in the necessity of an energetic Executive, it will only remain to inquire, what are the ingredients which constitute this energy? ……. The ingredients which constitute energy in the Executive are, first, unity;…..”

Note that unity is listed first. And what is more critical to maintaining unity than holding a tight leash on the appointment power. Ensuring a potential member of the executive branch will promote the administration’s agenda is more difficult if that individual is beholden to those outside the executive authority. Moreover, diffusing the executive authority is contrary to the framers intent and to the effective operation of our republican system of government.

Thus while acquiescing to the demands of his Senate critics may appear casually to be a prudent step in light of the President’s lack of popular support in the short run, in the long run it is a capitulation of a major tool of the executive power. And it will make future encroachments on this power more likely.

But let’s not forget the co-conspirators in this process who sit over in the United States Congress. It’s true that there is a famous saying that every United States Senator wakes up in the morning and looks in the mirror and sees the next President of the United States, but mirror or no, this is no excuse for misappropriating presidential authority.

In fact, the Senate leadership’s performance in this matter was particularly appalling. Even for partisans, both Senate Majority Leader Harry Reid and Judiciary Committee member Chuck Schumer overstepped their bounds with this nomination. Rather than rebuke his colleague, Senator Schumer, by announcing that if President Bush nominated Ted Olson he would be treated fairly by the United States Senate, Harry Reid instead asserted, “I intend to do everything I can to prevent him from being confirmed as the next attorney general.” Even with the unprecedented and odious attack on Judge Robert Bork in 1987, Senator Kennedy at least waited until after he was actually nominated.

And unfortunately having succeeded this time others will be even more brazen leading to a potential bipartisan acceptance of the practice – a consequence that a President Clinton or Obama may someday find unpalatable. Ultimately, this failure to operate within constitutionally ordained roles may result in future presidents’ – regardless of party – being unable to carry out their agendas. Washington politics is already poisonous enough without adding the challenge that an incumbent President can’t have the advisers and aides of his own choosing.

This genie must be put back in the bottle. In Article II of the Constitution the president’s authority to make appointments is clearly outlined, and no fair reading of it implies that it is in any way a legislative power. “The President . . . 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…”

It is difficult to imagine an administration effectively carrying out its agenda if it doesn’t have the ability to select the men and women who will implement it. That’s one reason why from its inception our Constitution contemplated the head of the federal government having the agility and flexibility to accomplish the agenda which had been presented to the public in the national election and doing so by making appointments and nominations. Lest some attempt to hide behind the provision in the Constitution giving the Senate the power to “advise and consent” note that the appointment and nomination power is found in Article II of the Constitution. This is where the Executive Power resides. The legislative power resides in Article I.

And this was no accident as our founders intended the selection or appointment process to be an executive function, not a legislative function. Alexander Hamilton explains explicitly in Federalist #66, “….It will be the office of the President to nominate, and, with the advice and consent of the Senate, to appoint. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose - they can only ratify or reject the choice of the President…. ”

Thus it was no surprise when George Washington reminded the United States Senate that their advice and consent would come after the President had made his nomination, not before. President Washington did this even with a Congress dominated by Members of his own political party. How much more important it is this principle today when partisanship may contribute to a willingness of the Congress to breach the established zones of authority?

To be clear, Senators should play an important role in determining the fitness of a given nominee for a cabinet position. Particularly in light of the ongoing War on Terror, their scrutiny may be amplified when assessing potential heads of the Department of Justice or Defense. But outside the quest to determine competence or ethical fitness, this role however is no license for disregarding the constitutionally prescribed duties of the President.

Hopefully Judge Mukasey will ably serve the administration and assist the President in carrying out his priorities for the rest of his term. But if he turns outs to have a different agenda, the next president will likely pay a high price for his independence.


Horace Cooper

Horace Cooper is a legal commentator and a Senior Fellow with the Institute for Liberty.