JURIST Guest Columnist William G. Ross of Cumberland School of Law, Samford University, says that for various constitutional, political and practical reasons made all the more pressing by controversies surrounding a number of high-profile and now even withdrawn nominees, the US Senate should subject President Barack Obama's cabinet picks to a robust confirmation process that will help ensure that executive officials conform to rigorous standards of ability and character…

The controversies that have developed over several of President Barack Obama’s Cabinet nominees furnish an important reminder that the U.S. Senate’s constitutional role in providing “Advice and Consent” in connection with the appointment of executive officers is no mere formality. The Senate should offer robust “Advice” and should not hesitate to withhold its “Consent” if it concludes that a nominee is deficient in qualifications or character, if potential conflicts of interest threaten a nominee’s independence, or if the Senate has serious objections to a nominee’s policy preferences.

The Senate has had no reason to question the professional qualifications of any of Obama’s nominees, whose resumes glitter with an abundance of the credentials that are regarded as the hallmarks of success in contemporary America. The nominees — ten of whom already have been confirmed — include several members of Congress, governors, a former Army chief of staff, and the first Nobel laureate ever to join a Cabinet, Energy Secretary Steven Chu.

The “best and the brightest,” however, do not necessarily have the type of wisdom and courage that are at least as important as experience and technical competence in a high public official. It is ironic that the commanding professional profiles of several nominees, including Timothy Geithner (Treasury), Tom Daschle (Health and Human Services), Bill Richardson (Commerce), Eric Holder (Justice), and Hillary Clinton (Secretary of State) have created situations that have called into question their personal fitness for Cabinet posts.

Geithner and Daschle failed to report significant amounts of income that they derived as a result of their professional prominence. Geithner’s unreported income came from the International Monetary Fund, while Daschle’s was derived from a post-Senate career as a highly paid consultant. Geithner’s nomination also was clouded by the revelation that he employed a housekeeper whose immigration papers expired while she was working for him. Although most Cabinet nominees are confirmed with virtually unanimous votes, the Senate last week confirmed Geithner by the underwhelming margin of 60 to 34 because many senators, including three Democrats, believed that Geithner’s omissions were inexcusably negligent, if not willful. Geithner’s failure to pay overdue taxes until after his nomination was particularly troubling because Geithner will oversee the Internal Revenue Service. Daschle properly withdrew his name Tuesday in the wake of mounting criticism.

Many Americans who were disgusted by the cheap shots that some Republicans aimed at the Internal Revenue Service during recent years are naturally dismayed that the confirmation of Geithner and the defenses of Daschle by Democratic senators demonstrate that too many Democrats likewise have a cavalier attitude toward tax irregularities. As Republican Senator Mike Enzi of Wyoming explained in voting against Geithner, “Nominees for positions that do not oversee tax reporting and collection have been forced to withdraw their nomination for more minor offenses.” Democratic Senator Robert F. Byrd of West Virginia questioned whether Geithner ever would have paid the taxes if he had not been nominated for Treasury Secretary.

Many senators apparently were willing to overlook Geithner’s tax and servant problems because they contended that Geithner’s talents and experience were urgently needed at the Treasury Department during a time of economic crisis. One could argue, however, that economically troubled times require a greater than ordinary faith in the personal integrity of the Treasury Secretary. Much of the present economic turmoil has resulted from a lack of confidence in the wisdom and probity of public officials and the chief officers of major corporations. The appointment of a Treasury Secretary who, for whatever reason, has failed to report significant income in a timely manner is likely to further erode the confidence of citizens and markets in our faltering economic system. Similarly, the Senate should have rejected Daschle’s nomination if Daschle had not withdrawn, unless Daschle could have presented a compelling explanation for his failure to pay all of his taxes in a timely manner.

Withdrawal of an embarrassing nomination is a way for the President and his nominee to avoid the humiliation of a rejection. The Senate has rejected only one per cent of the nine hundred Cabinet nominations it has considered during the past 220 years, but other nominations have been withdrawn. New Mexico Governor Bill Richardson, Obama’s nominee for Commerce Secretary, withdrew last month in the wake of a grand jury investigation into alleged influence peddling in connection with state contracts. Nancy Killefer, Obama’s nominee to serve as the government’s chief performance officer, withdrew on account of questions about the payroll on her household help.

An issue of character also clouded the nomination of Eric Holder, Obama’s nominee for Attorney General. Some senators and commentators expressed misgivings about Holder’s role in President Clinton’s 2001 pardon of fugitive financier Marc Rich, when Holder was deputy attorney general. When White House counsel solicited his opinion about the pardon, Holder replied, “Neutral, leaning toward favorable.” The Senate confirmed Holder’s nomination by a vote of 75 to 21, with the Rich issue presumably accounting for many or most of the negative votes.

Although Holder has expressed contrition for his failure to oppose a pardon that continues to generate widespread outrage, many of Holder’s critics contend that Holder’s failure to stand up to the Clinton Administration augurs poorly for his ability to exercise the kind of independence that is critically important in an attorney general. As Washington Post columnist Richard Cohen has pointed out, “any person is entitled to make a mistake. But no one is entitled to be attorney general. That’s a post that ought to be reserved for a lawyer who appreciates that while he reports to the president, he is the people’s lawyer.” Cohen’s remark echoes then – Senator Joseph R. Biden’s admonition to Edwin Meese in 1985 that “you are…to become the people’s lawyer more than you are to be the president’s lawyer.”

Many Democrats may have felt, however, that professional independence did not need to be a major issue in Holder’s confirmation insofar as they trust Obama to pursue wise policies that should not require a nay-saying Attorney General.

There is widespread agreement that the Senate should examine attorney general nominations with especially strict scrutiny because attorneys general are responsible for enforcing the law fairly on behalf of all American citizens, particularly persons who lack effective means of influencing the executive and legislative branches of government. The Senate also should scrutinize Attorney General nominees more carefully than others because the Justice Department is more intimately connected than are other executive departments with both the legislative and judicial branches of government.

Another controversy, involving potential conflict
s of interest, arose in connection with Hillary Clinton’s nomination as secretary of state on account of William J. Clinton’s widespread business interests and establishment of foundations that have attracted substantial contributions from foreign governments. As Republican Senator Richard Lugar explained, “The core of the problem is that foreign governments and entities may perceive the Clinton Foundation as a means to gain favor with the secretary of state.” Similarly, Republican Senator John Vitter of Louisiana warned that “President Clinton’s business and foundation dealings are a multi-million dollar minefield of conflicts of interest. And that could produce explosions at any minute, particularly in the Middle East, where we least need them.”

But while the potential for conflicts of interest may have been substantial, senators appear to have concluded the actual likelihood of conflicts of interest were too remote for rejection of a nominee who has a potent political constituency and considerable knowledge of foreign policy. The Senate approved her nomination by a vote of 98 to 2.

Concerns about ideology have stalled the confirmation of only one nominee, Representative Hilda Solis, Obama’s nominee for Labor Secretary.

Solis has expressed reluctance to express an opinion about legislation that to abolish secret ballots in union elections, which unions believe would facilitate labor organization. Controversy over Solis’s position on this issue appears to reflect deeper anxiety among conservatives that Solis’s policies as secretary of labor would help to re-invigorate the American labor movement.

The degree to which senators may properly use ideology as a criteria in the Cabinet confirmation process is a subject of some controversy among senators and scholars.

Some have argued that the Senate should heavily defer to the President’s choices because the President has a mandate from the people to select administrators who favor the President’s policies.

The President’s choices also may be entitled to deference to the extent that the President needs to have advisors with whom he is ideologically compatible and who can be trusted to faithfully execute the President’s programs. The late Senator Henry M. Jackson of Washington expressed the views of many senators in his own time and now when he observed forty years ago that “these are the President’s men and he is entitled to have them, barring some flagrant error or abuse of his prerogatives in making his nominations.” Jackson, a Democrat, voted to confirm Nixon’s Cabinet nominees even though these men were not the type of persons he would have appointed if he had won any of his own presidential bids. Moreover, as Senator John H. Glenn once pointed out, ” faith and trust in key subordinates can have an important bearing on the efficiency and effectiveness of government.”

It is natural that many senators, particularly Democrats, are inclined to defer heavily to Obama’s choices. Unlike Clinton and Bush Jr., Obama was elected with an absolute majority of the popular vote, and his election has generated goodwill and a sense of a fresh beginnings even among many persons who did not vote for him.

Senators should be mindful, however, of the late Senator Warren Magnuson’s admonition that no one “is anointed simply because he is appointed.”

Although the president’s nominees are entitled to at least some deference under a “mandate” theory, American presidential elections never provide clear mandates for particular policies. Party platforms long ago degenerated into empty rhetoric contrived to appease special interest groups, and many critics of Obama contend that he was even vaguer than most candidates about what he would do as President.

Moreover, senators, too, have a mandate from the people. Ideological issues are at least as important to voters in their selection of senators as they are in the election of a president. As Senator Carl Levin once observed, “the President is entitled to someone in whom he has confidence, of course, but the Nation is also entitled to someone in whom it has confidence.”

Furthermore, Cabinet members owe responsibilities not only to the President but also to Congress. As the constitutional scholar Louis Fisher has observed, “Department heads and their assistants are not mere staff support for the President. They are called upon to administer programs that Congress has enacted into law.” Accordingly, Fisher has aptly argued that “to defer to the President on the principle that he has a right to select his own assistants makes a nullity of the Senate’s advice-and-consent role.”

The Senate clearly therefore has a duty to inquire into the political philosophies and policy preferences of nominees. Indeed, Biden, while serving as a senator, went so far during a Republican Administration in 1989 as to argue that “the burden is upon the nominee to establish his qualification for office and not vice versa.”

In order to determine the ideological preferences and likely policies of nominees, senate committees have a duty to conduct wide-ranging hearings. As Enzi explained in criticizing Solis for her reticence about the ballot legislation, the Senate has “the obligation to really get it down on paper what [the nominees’] beliefs are.”

The hearings on Geithner, however, failed to provide an exploration of how Geithner’s views on important economic issues. Geithner testified before the Finance Committee only for a few hours and provided what many observers regarded as vague answers to questions about how he would address the nation’s banking mess.

The Senate apparently rushed through its deliberations on Geithner because the Administration and many senators insisted that the treasury secretaryship should not remain vacant even for a few days during a time of economic crisis. But this argument ought to be turned on its head. Since the treasury secretary will have a key role in efforts to restore the nation’s financial stability, the Senate should have taken particular care in selecting this official. The haste with which Congress approved the Patriot Act in 2001 and the financial bailout last autumn should provide vivid reminders that the Senate ought to take its time in considering important issues. The recession is grim, but there is no emergency that required the immediate confirmation of a treasury secretary.

Hearings also provide an opportunity for senators to share their own views with the nominees and to conduct an inter-branch colloquy about important public issues. The hearings on Chu, for example, included a serious discussion of American energy policies.

Geithner’s nomination could have provided a useful opportunity for considering critical policy issues involving the economy, but senators failed to use the hearings for this purpose. In particular, too few senators expressed concern about the extent to which Geithner may have supported easy credit policies during his tenure as president of the Federal Reserve Bank of New York. The confirmation of Geithner could have provided a forum for debating the wisdom of trying to end the recession by employing the same louche monetary policies that caused the recession. Such a debate was never likely, however, since few senators of either party appear to have any serious interest in preventing inflation, discouraging feckless consumption, reducing the federal deficit, rewarding personal thrift, or relieving the distress of countless retirees whose incomes have plummeted in the wake of near-zero interest rates.

Although the Geithner hearings also should have provided the occasion for discussion of the wisdom of the controversial bailout of financial institutions, which Geithner supported, such a discussion likewise was unlikely because most senators voted for the bailout. The failure of senators to question Geithner more closely about his economic views therefore may reflect fundamental defects in policy p
references of the senators more than any defect in the confirmation process itself.

One reason why the Senate does not always conduct searching examinations into the opinions of a nominee is that the Senate is constrained by practical limitations on its time. Since any qualified nominee has a long record of public service, almost every nominee is bound to carry some kind of controversial baggage. In many instances, an exhaustive examination of a nominee would unduly protract the confirmation process if there is little likelihood that the Senate’s investigation would turn up anything new that might cause the Senate to reject the nomination. The Senate, for example, easily could have spent the next four years delving into the intricacies of the Clintons’ finances and the foreign policy records of President Clinton and Senator Clinton.

Moreover, if the Senate rejects a nominee on ideological grounds, it has no assurance that the President will appoint a more palatable candidate. As one senator observed in explaining his support for Geithner, “this is the best you can expect from this administration.” Although the Senate may reject a nominee, there is no way that one hundred senators — or fifty-one — can propose a viable alternative.

Despite these constraints, the Senate should never act as a rubber stamp for the President. With the exception of its undue deference to Geithner, the Senate has been properly robust in its review of Obama’s nominations. The withdrawal of Richardson, Daschle, and Killefer are encouraging signs that the nominees and the Administration recognized that their nominations probably faced tumultuous opposition from senators. The Senate should continue to carefully examine the remaining Cabinet nominees.

A robust confirmation process helps to ensure that executive officials conform to rigorous standards of ability and character. Vigorous and occasionally rambunctious confirmation proceedings also help to ensure that the political predilections of appointed officials do not stray too far from the political preferences of the voters who elected senators to advise the President about his nominees and to offer — or withhold — consent.

William G. Ross is a professor at the Cumberland School of Law at Samford University. He has published extensively on American constitutional history and separation of powers. In JURIST columns in 2001 and 2006, he argued in favor of robust senatorial review of President Bush’s Cabinet nominees. His website is williamgeorgeross.com.
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