Constitution Daily

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Constitution Check: Who has the power to fill the president’s cabinet seats?

December 20, 2012 by Lyle Denniston


Lyle Denniston looks at the controversy over two Cabinet nominations by President Barack Obama, and how it further erodes the constitutional respectability of the nomination and confirmation process.

The statement at issue:

“With Chuck Hagel, a former senator from Nebraska, emerging as a front-runner to be President Obama’s next secretary of defense, critics are taking aim at his record on Israel as well as remarks he made about pro-Israel lobbying groups in Washington….For the White House, it is the second time a candidate’s record has come under fire even before a nomination was announced.  Last week, Susan E. Rice, the ambassador to the United Nations, withdrew her name from consideration for secretary of state after coming under weeks of withering assault by Republicans.”

–Mark Landler, New York Times reporter, in a story published on December 19 discussing the developing opposition from “Jewish leaders” to a potential Hagel nomination.

We checked the Constitution, and…

Article II, Section 2, clearly defines two separate powers over the selection of federal government officials, including those who will serve in the president’s Cabinet. The power to make the initial choice--the nomination--lies with the president, and the power to give “advice and consent” (or the power to advise and reject) lies with the Senate. Each, of course, may be influenced by outsiders exercising their First Amendment right to “petition” the government.

Ever since the Senate, in 1795, reacted to criticism of John Rutledge’s views on a peace treaty by rejecting his nomination to be chief justice, the American public has been able to claim a voice in the nomination and confirmation process.

But one may also assume that the Founding Generation believed that it would be better for the country to let that process work, hopefully in a reasoned exercise of informed discretion--and especially so when nominations to some of the government’s most powerful offices are at stake.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

It is true, of course, that this process has not been working very well, for many nominees, and it often deteriorates into the worst kind of partisan squabbling. Still, the constitutional ideal would seem to be to let the president and the Senate work their wills.

A popularity contest, even before a nominee has been chosen at the White House, might not help improve the official process. And a popularity contest may actually be a bad idea when it produces mostly distortion or misinformation about a potential candidate’s background.

Defenders of U.N. Ambassador Susan Rice as a possible nominee to head the State Department argue that that was the case with the attack on her before President Obama had settled on any nominee for that post. Similarly, defenders of Chuck Hagel as a possible nominee to lead the Pentagon are now claiming that the Rice episode is being repeated in the developing attack on him even before any nominee is named.

The White House may not have helped itself, in either of those cases, by allowing presidential aides to float the names of people who were on the president’s “short list” for either post, because that allowed opponents to start building their challenges in advance. It may be that the White House let the names be known in order to test the initial reaction--sending up trial balloons.

Even so, there is a constitutional question arising here: is the president’s power of choice being diminished, and is the Senate’s power of review being preempted? What happened to the traditional view that a president was more or less entitled to have a Cabinet of his own choosing, and to the traditional view that the Senate would give such choices a respectful hearing? The nomination and confirmation process, like so much else in official Washington, seems to be in trouble if not actually broken.

It is one thing to allow interest groups to have their say, as they certainly have a right to do, but it is another thing to hand over to them a power to veto, in advance, the president’s choice and to take control of the Senate process even before it has begun.

President Lyndon Johnson was famous for refusing even to propose a nominee, if the identity of the person he wanted to select became known in advance. That was not a good idea, and neither is it a good idea to keep the public out of the process before Senate hearings begin.

But neither is it a good idea, in constitutional or good government terms, to have the public dialogue be one that is dominated by opponents using smear tactics and half-truths. That approach has turned American political campaigns into a sorry spectacle, no doubt discouraging talented people even from running for office.

How many individuals, qualified to become members of the president’s Cabinet, would choose to give up that chance rather than run such an obstacle course? If there were sound reasons for opposing Susan Rice and Chuck Hagel for seats in the Obama Cabinet, those should have been aired. There could have been a serious dialogue about that, in both cases. That, however, is not what occurred, and the result was further erosion in the constitutional respectability of the nomination and confirmation process.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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