Article 2, Section 2 of the Constitution provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United states, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” Congress “may by law vest the Appointment of such inferior Officers, as they proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” Finally, the President “shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
The Appointments Clause, like so many other provisions and clauses of the Constitution, reflected compromise among the delegates to the Constitutional Convention. Doubt and disagreement over the preferred method of appointing “Officers of the United States” derived from the larger question that surrounded many of the debates about the Presidency: which governmental functions are better left in the hands of a single executive, for reasons of efficiency and accountability and as a means of avoiding cabal and intrigue, on one hand, and the undesirability of concentrating too much power in the executive, on the other, which therefore suggests shared power and collective decision-making.
The British model for executive power was familiar to the Framers, of course, but they rejected it in many respects, including the question of making appointments to office. In England, the King not only appointed officers, but also created offices. He also possessed the power of removal. The Framers were wary of such a concentration of power in the executive, and the many opportunities for mischief and abuse.
The Virginia Plan, submitted to the Convention by Gov. Edmund Randolph, proposed a “national executive” with authority to “appoint to offices in cases not otherwise provided for.” John Rutledge feared that vesting such authority in a single person would be “leaning too much toward Monarchy.”
James Madison, whose leadership in the Convention was unrivaled, shared delegates’ concern about locating too much power in the executive. It was Madison, after all, who had, early in the proceedings, urged his colleagues to “fix the extent of the executive authority . . . as certain powers were in their nature Executive; and must be given to that department,” adding that the Executive power should be “confined and defined.” And so it was, as we have seen. Madison’s supple mind prompted a compromise on the appointment power. He suggested that the Senate, with fewer members of the House, should be given the authority to appoint judges. The Convention tentatively accepted his plan into mid-June of 1787. Various delegates expressed concerns that the executive, armed with the power to appoint, might favor one region of the country over another. This concern reflected the Framers’ knowledge of the way in which English Kings has wielded the appointment power to curry favor, advance friends and allies, and promote different regions—all different forms of corruption. Thus Luther Martin recommended that the Senate would be “best informed of characters & most capable of making a fit choice.” Madison found this suggestion persuasive and offered yet another proposal: allow the executive to appoint judges with the concurrence of some fraction of the Senate. The virtue of this idea, he believed, was that it joined the responsibility of the executive with the security afforded by Senate opposition to “incautious or corrupt” nominations. Clearly, Madison was moving forward with the idea of granting the Senate the power of “advice and consent” on presidential nominees.
The various concerns that swirled about the appointment power, derived from the Framers own experience and their familiarity with English history, meant that the issue was left to what was variously known as the Brearly Committee, the Committee of Postponed Parts, or the Grand Committee, because each state was represented, hence the term “Grand.” Madison was a member of this committee, which was packed with heavyweights. On September 5, the committee made its recommendations, which included what became the language governing the Appointment Clause in Article 2 of the Constitution. The committee’s decision was undoubtedly influenced by several factors, which formed a valuable road map for their consideration. As early as June 18, Alexander Hamilton, in his lengthy speech to the Convention, had proposed that the “supreme executive” ought to have the “power of appointment of the heads or chief officers of the departments of Finance, War and Foreign Affairs” as well as he authority to appoint “all other officers” and “Ambassadors to foreign Nations.” The Senate, he said, should have “the power of approving or rejecting all appointments,” except department heads.
Hamilton’s own plan for the location of the appointment power was borrowed from the constitution of his home state of New York, which empowered the Governor to make appointments “with the advice and consent” of the executive council. In Massachusetts, whose constitution provided the best model for the office of President, the governor exercised his extensive appointment powers “by and with the advice and consent of the council.”