When Alabama Sen. Jeff Sessions, President-elect Donald Trump’s pick for Attorney General, goes before the Senate on Tuesday, the political controversy will be guaranteed: Sessions failed to get past a confirmation hearing in 1986, when his record on race was a factor in dashing his hopes of a federal judgeship. But Sessions is only the beginning: hearings will also begin Tuesday for Gen. John F. Kelly, for Secretary of Homeland Security, and the schedule for the rest of the week is packed full of hearings for other cabinet positions.
But, though the system of confirmation hearings may now seem like a matter of course, it was not a foregone conclusion that the Senate would have any say at all in the appointment of members of the president’s cabinet. At the same time, neither was it a foregone conclusion that the president himself would get any voice in the matter.
At the constitutional convention and in the precedent-setting early days of the United States, the mechanisms of appointment were a subject of much debate.
The records of the convention show that some of the framers were concerned that giving the Senate any role in the matter would blur the line between the executive and the legislature, and that a chief executive should get to pick his own closest advisers. Others worried that there needed to be a check on his appointment power and may have favored the system used by the Articles of Confederation—the system commonly in place in the states—of letting the legislature decide. The final version gave them both some input: the President would nominate people for a number of positions “by and with the Advice and Consent of the Senate.”
That system was felt, in the words of Gouverneur Morris, to offer a balance between “responsibility” (everyone would know who had made the nomination in the first place) and “security” (the ultimate decision wouldn’t be left to one man alone).
But, perhaps unsurprisingly, that rather vague wording about “advice and consent” immediately provoked further debate. Was the advice supposed to come before a nomination and the consent after? Both after? Both before?
Some supposed that the Senate’s power would amount to very little in practice. As Alexander Hamilton predicted, accurately, in the Federalist 76, the Senate would not often reject such a choice. And yet the Senate’s role was important, he explained. Though a President might want to choose cabinet secretaries because he liked them personally or to treat the choice as a popularity contest, Hamilton reasoned that the mere act of having to submit that choice to a public body like the Senate would be reason for the President to put more thought into the decision.
“He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure,” Hamilton wrote, though not everyone at the time agreed that such a situation would be enough of a check.
As with so many American questions, George Washington set a precedent that has largely continued to this day: As he explained in his diary, he was counseled that the Senate had no power beyond “approbation or disapprobation” of the nominee, and that it would create a bad precedent to consult them in advance, as it would imply that in fact their power extended to involvement in the nomination itself. He and several other precedent-setting presidents consulted with members of Congress—outside the framework of a hearing—about whom to nominate, but the Senate’s official actions came after the nomination.
Though some eras have seen more controversy than others, actual rejections of cabinet nominees are rare. There have been nine rejected nominees total, and only three in the last century. More frequently, especially in recent years, a president will withdraw a nomination if it becomes clear the nominee will not make it through the process. Should the Senate decide to reject Sessions, the move would be a surprising break with that precedent—but that doesn’t mean it’s not one that some hope comes to pass.