After each quadrennial election, the country learns—and frequently relearns—constitutional lessons about the presidential selection and transition processes. Last November’s contest reminds us that the electoral college system has deep flaws, including the inequality of votes around the country, the relative lack of attention non-swing states receive, and problematic possibilities concerning how much constitutional independence members of the so-called electoral college enjoy to vote however they want. It also reminds us that outside interference—whether by nation-states or terrorists—is something to which we need to be much more attentive, lest we find ourselves in a post-election constitutional crisis the likes of which we have not seen in modern American history. Both of these lessons were clearly visible after, respectively, the 2000 Bush/Gore election and the 9-11 attacks (on a local election day, some might recall) less than a year later. But alas, not enough has been accomplished to deal with these problems in the ensuing 15 years.
This week, as many of President-elect Trump’s Cabinet nominees undergo hearings in the relevant Senate Committees in preparation for Senate votes on confirmation, additional features of the Constitution—including some that ought to be cause for concern—are on display.
Let us start with one aspect of the Constitution that is not necessarily problematic but that remains not fully grasped by most Americans, and that is the difference between the nomination/confirmation process as regards members of the executive and judicial branches.
The basic constitutional text governing appointments appears in Article II, Section 2 of the Constitution, which provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” various high-level executive and judicial officers. Congress by law can allow “inferior” officers to be appointed without Senate confirmation; and the president may also fill “Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of [the Senate’s] next Session.”
While this language of Article II, read in isolation, might seem to suggest that all major (that is, non-inferior, non-recess) appointments are identical, governed by a uniform “advice and consent” standard, we must construe the clause in light of the rest of the Constitution, and traditional institutional practice.
And the rest of the Constitution identifies key differences between executive officers serving the president under Article II and judicial officers independent of the president by virtue of Article III. Executive officers answer to the president (quite literally, in the Article II, section 2 Opinions Clause) and will typically leave when he leaves. Because of a relatively direct line of accountability—if a president’s underlings misbehave, voters can hold the president responsible—a president is generally entitled to have his branch filled with his people, whom he directly oversees.
By contrast, our Constitution generally envisions independent federal judges whose life tenure allows them to resist the other branches when the need arises. Federal judges (especially Supreme Court justices) are different from Cabinet members. They do not answer directly to the president. They are not part of his Administration. When he leaves his office, they will stay in theirs.
Because of these structural differences, the Senate has always given a president more leeway in picking his Cabinet than in picking justices. The pattern began in 1795 when the Senate rejected George Washington’s pick for chief justice, John Rutledge. By 1835, the Senate had stymied four Supreme Court nominees, but had yet to nix any Cabinet nominees.
Indeed, although presidents have nominated between five and ten times as many persons to the Cabinet as to the Supreme Court, the Senate has formally rejected fewer (about 10) Cabinet nominees than Supreme Court nominees (a dozen or so.) In the past half-century, John Tower (1989) appears to be the only Cabinet nominee to be voted down by the Senate, whereas Supreme Court nominees Clement Haynsworth (1969), G. Harrold Carswell (1970) and Robert Bork (1987) were all shot down in full Senate votes.
Thus it is unsurprising that the Senate appears to be moving quickly to process (and apparently confirm) Mr. Trump’s Cabinet nominees in short order, but will likely proceed much more slowly and carefully in processing his judicial nominees, including whichever nominee he names to fill the Supreme Court seat made vacant by Justice Antonin Scalia’s death almost a year ago.
As intimated above, the historical distinction between executive and judicial nominees makes good structural sense. Yet there is a second aspect of this week’s rapid Senate processing of President-elect Trump’s Cabinet picks that seems a bit odd and that hints at a problem—the fact that the Senate is conducting hearings on prospective nominees even before Mr. Trump becomes President. The problem here is not that the Senate is trying to effectively shrink the gap between election and inauguration (other twenty-first century Senates have also moved quickly); the problem—in the modern world with modern, time-sensitive, crises—is that such a gap of almost three months exists at all. As my older brother and fellow law professor Akhil Amar has repeatedly observed, other countries, such as Great Britain, generally have a much quicker succession process once the electoral die has been cast. And in a world with economic emergencies (think about how dire things were looking in the months between the November 2008 election of Barack Obama and his inauguration in January 2009, or how bad things were in the months between FDR’s defeat of Herbert Hoover in November 1932 and FDR’s installation five months later—back then inauguration day was in March, not January) and perilous foreign affairs predicaments, it behooves us to think about ways for the reins of power to be turned over peacefully but more quickly.
As Akhil has observed, there are some tradeoffs here, since some time after the November election night might be needed to count and recount ballots and resolve legitimate questions about election integrity and outcome. But once it is clear who won the election (and it’s been pretty clear for many weeks that there are no tenable legal grounds to contest Mr. Trump’s victory), we ought to be open to constitutionally permissible means of transferring power more rapidly.
Akhil has suggested one intriguing route—more ambitious and creative use of the Twenty-Fifth Amendment’s succession provisions. The idea would be for a sitting president to announce (so that voters have notice and execute) the following kind of plan: After a suitable time to resolve any bona fide controversies as to electoral outcome (presumably in late November or early December), the sitting vice president (say, Joe Biden) would resign and be immediately replaced by the winner of the presidential contest (today, Donald Trump), whom Congress could immediately confirm under the Amendment’s terms. The president (Barack Obama in this hypothetical) would then himself resign, effectively and legally elevating the new Vice President (now Mr. Trump) to the presidency. Then President Trump could quickly fill the vice-presidential vacancy with his own choice (Mike Pence), who in turn could be promptly confirmed by the Congress.
Apparently President Woodrow Wilson was planning to do this type of thing if he lost his reelection bid in 2016 (in order to facilitate rapid transfer of power during World War I). Because the Twenty-fifth Amendment wasn’t yet in place (it came about only 50 years ago) and thus there was no way prior to 1967 to fill a vice-presidential vacancy (shocking that vice-presidential vacancies, such as those created by Lincoln’s and Kennedy’s assassinations, went unfilled until the next presidential election), Wilson’s idea was even more complex; he proposed to name his election rival Charles Evans Hughes as Secretary of State (the first officer in the line of statutory succession in the event the president and vice president were gone), and then after Hughes’ Senate confirmation, Wilson and his veep, Thomas Marshall, would resign. Of course, Wilson won reelection so the plan never went into effect.
But perhaps it is time to revisit Wilson’s idea from 100 years ago, and consider it—or something like it that makes use of the Twenty-fifth Amendment passed 50 years ago—for future presidential elections in which transitional time is of the essence.
Government of the rich, by the rich, for the rich