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Book Review
| Mitchel A. Sollenberger. The President Shall Nominate: How Congress Trumps Executive Power, Lawrence: University Press of Kansas, 2008. Pp. xv + 312. $39.95 (ISBN 978-0-7006-1576-6).
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| The selection and installation of countless nonelected federal officials has shaped the performance of the United States government from its outset. Those officials have ranged from Alexander Hamilton as secretary of the treasury to "Heckofajob Brownie" as director of the Federal Emergency Management Agency. Commonly overlooked by scholars and the public except in the case of a few high-profile Supreme Court, cabinet, or ambassadorial appointments, choice of federal officials is among the few constitutional powers explicitly shared by the executive and legislative branches of the United States government. Complaints in recent decades from Presidents Richard Nixon, Ronald Reagan, and George W. Bush about significant constraints on their discretion in the realm of appointments not only serve as reminders of the importance of Article II, Section 2 in the U.S. constitutional system but also tellingly refute assertions that the framers of 1787 intended to create an all-powerful unitary executive. |
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In The President Shall Nominate: How Congress Trumps Executive Power, political scientist Mitchel A. Sollenberger seeks to shed new light on the federal appointment process. After noting the revolutionary generation's persistent desire to avoid investing unlimited power in the executive, he carefully reviews the framers' discussions that led to the shared responsibility outlined in Article II, Section 2. He then considers the operation of the appointment process over more than two centuries, not by the usual method of looking at the occasional well-publicized battles that have erupted after presidents nominated individuals unacceptable to the Senate, but rather by examining the routine interactions between members of Congress and the executive that have regularly taken place before nominations were even made. It is the common out-of-sight prenomination process of consultation and negotiation, Sollenberger argues, that has allowed for the normally smooth functioning of the constitutional provision directing that the president "shall nominate, and by and with the advice and consent of the Senate, shall appoint" federal officials. |
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Sollenberger chooses to examine briefly the conduct of each president from the first George W. to the most recent as they dealt with appointments. He is thus able to demonstrate that each chief executive has interacted with Congress in his own fashion, though all have been forced to acknowledge, willingly or grudgingly, that the Constitution was designed to strike a balance, empowering Congress to thwart executive initiative. The evolution of a system by which executives would consult with senators of their party from the state where the appointee was to serve or from whence he or she came (or in the absence of such a senator, members of House or party leaders from the state) extended executive awareness of suitable appointees and allowed the approval process to function successfully most of the time. At the same time, the interest of legislators in controlling political appointments in their own state led to the development of mutual "senatorial courtesy" in which, if a home-state senator objected to an appointment, other members of the body would bow to his or her decision so as to protect their own future opportunity to do likewise. A range of parliamentary techniques evolved to privilege localized knowledge and state interests |
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Sollenberger suggests that while altering the number of appointive positions in play at any one time, neither the Jacksonian spoils system of rotation in office, the post—Civil War Tenure in Office Act, the civil service reforms of the Pendleton Act (each of which he examines carefully), nor the expansion of federal positions during the last century (given less attention) fundamentally altered either constitutional requirements or practices for dealing effectively with them. He does not explore the shift in the volume and types of appointments as mail service grew and changed, legal training and practice were professionalized, or less state-based and more centralized federal employment developed. The apparent shift toward technical competence as a condition for federal appointment does not draw as much attention as the growing insistence on party loyalty in recent years. Sollenberger retains a tight focus on the executive-legislative relationship, and the repeated story of presidents either understanding from the start the need for collaboration or eventually coming to terms with that constitutional necessity. |
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The gradual evolution of practices for routine selection of thousands of postmasters, marshals, tax collectors, prosecutors, and district judges is a story largely buried in the papers of presidents and legislators. Sollenberger has examined enough of these documents to grasp the outlines of the story but hardly enough to describe all the contests over such appointments. Collectively, appointment collaborations as well as contest played an important part in building the bonds that defined political parties. Sollenberger has furnished a useful road map and plenty of sightseeing tips as he has pointed historians and political scientists seeking to understand a particular local-federal relationship in a direction they may wish to travel. |
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| David E. Kyvig
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| Northern Illinois University |
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