Wednesday, January 27, 2016

Freidland on the Appointments Clause

Steven Friedland, Elon University School of Law, has posted “Advice and Consent” in the Appointments Clause: From Another Historical Perspective, which appeared in the Duke Law Journal Online 64 (May 2015).  To quote from its lengthy abstract:
A central premise of this paper is that the brilliance of the Appointments Clause has become obscured by dysfunction past and present. The Senate’s deference to the President’s nominees in the past was just as damaging to effective government as some of the political polarization and obstruction of the current day. In other words, the appointments process has changed over time, but not necessarily for the worse. Historical rubber-stamping of nominees by the Senate, with lightning-fast approval, is not preferable to careful and reflective consideration and the opportunity for collaborative competency between two branches of government. Yet, today’s new appointments process is fraught with peril, from wholesale refusal to act in a timely manner to staged public hearings designed to reveal nothing. Some of these new tactics are inconsistent with the process values of the clause and have a far-reaching impact. . . .

This Essay first explores the Clause’s antecedents in the Age of Enlightenment and its emergence in the Constitutional Convention in 1787, showing how its sturdy separation-of-powers foundation was built. In Part II, the Essay focuses on the historical realities of the Clause’s two-branch process, especially how the operability of two political bodies naturally yields results consonant with the etiquette and political sensibilities of the day. Then, in Part III, it offers several suggestions on how to cabin the potentially untrammeled discretion of the Senate in responding to presidential nominations.