Sanford Levinson—

Federalist 65: The Senate’s Confirmation and Impeachment Powers

One of the most important distinction between the Senate and House, with regard to their constitutionally granted powers, concerns the former’s unique role in confirming presidential appointments. It is utterly irrelevant, as a formal matter, what the House thinks about any of the president’s nominees; what is crucial is whether that person can get approved by the requisite majority of senators who are present and voting on a given day (as against an absolute majority of the entire one hundred senators). Anyone aware of contemporary American politics knows this is no easy task, whether one is thinking of nominees to the federal bench or even nominations for cabinet or subcabinet positions. Rather stunningly, Publius mentions this power only to scant any serious discussion of it. He does, to be sure, mention it again in Federalists 76 and 77, when discussing the president’s power to appoint officials, but one can only wonder at the absence of sustained discussion in the group of essays devoted to the Senate. The answer surely cannot be that appointment and confirmation is without practical interest.

One might ask why the framers of the Twenty-fifth Amendment, added to the Constitution in 1965 to provide a way of filling vacancies in the vice presidency, dictated that both the House and Senate must approve the president’s choice. Granted, the vice president, as a prospective president should anything happen to the incumbent, is more important than almost any other political official, but, given the infrequency of such succession and the uncertain powers of the vice president (whose only task under the Constitution is to preside over the Senate), is it really more important to gain the assent of both House and Senate for that office than, say, for the person chosen to be chief justice of the United States, secretary of state, chair of the Joint Chiefs of Staff of the armed forces, or head of the Federal Reserve Board? And it is worth noting as well that under the Succession in Office Act, members of the cabinet, beginning with the secretary of state (if a “natural born Citizen”) would move into the Oval Office in certain extreme circumstances. The vice president may be only a heartbeat away from the presidency, but the secretary of state is only four beats away (with the speaker of the House and the president pro tempore of the Senate, unwisely I believe, being placed by the act between the vice president and the secretary). Were we redesigning our Constitution from scratch, would we again place the confirmation power entirely in the hands of the Senate?

Publius gives a good deal more attention to the Senate’s unique role of determining whether to convict presidents (and other high officials) who have been impeached by the House. One can compare the House to the grand jury, which has only the power to indict. Conviction requires either a trial or a voluntary guilty plea. Some impeached officials have gone quietly into obscurity by resigning their offices, but most (especially federal judges) have insisted on their “day in court,” that is, the Senate, and some have escaped conviction.

Publius is well aware that impeachments stir up popular passion and may reflect partisan or factional disputes. Readers should have little trouble thinking of contemporary examples. Although one might imagine that voters themselves be given the power to acquit or convict, as they do in recall elections, that is obviously not the path taken in Philadelphia, nor is it likely that Publius would have thought that a good idea. He writes, “The convention, it appears, thought the Senate the most fit depositary of this important public trust” to judge impeached officials fairly and impartially, as we would expect ordinary juries to do.

Publius compares the constitutional differentiation between House and Senate to that in Great Britain, where the House of Commons brings charges and the House of Lords assesses their merits. But are there no alternatives, even if one rejects a national “citizen jury” of electors? Publius addresses the possibility that the Supreme Court might be the final judge of an official’s culpability. “It is much to be doubted,” he writes, that the Court would have the “fortitude” necessary “in the execution of so difficult a task.” Far more important, though, is his second concern, which is whether members of the Supreme Court “would possess the degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought by their immediate representatives. A deficiency in [fortitude] would be fatal to the accused; in the last, dangerous to the public tranquillity.” Again, the principal concern appears to be taming public passions, which requires that the decision makers have genuine public respect, and Publius apparently doubts whether Supreme Court members will be as highly respected as senators. This too raises empirical questions: One can wonder whether this is true in the contemporary United States. Perhaps, if we polled the public, we would discover that neither institution possesses “enough” respect to still the partisan clashes that at least some impeachments would provoke. Just as much to the point, perhaps, we might want senators to cast “prudential” votes, based on balancing the harm done even by a president’s illegal conduct against his or her ability to serve the nation well by continuing in office (mixed, perhaps, with assessments of the abilities of the vice president, who would take over in case of a conviction). Justices, on the other hand, might be more legalistic in their approach and ask only whether the president in fact committed “high Crimes and Misdemeanors.”

Publius points to another problem if we rely on the judiciary instead of the Senate, which is the limited size of the United States Supreme Court. While the Constitution does not specify the Court’s size, Publius was likely not surprised that the first Congress gave it six members (as distinguished from the initial count of twenty-two senators, given that Rhode Island and North Carolina had not yet ratified the Constitution when the new government met for the first time). “The awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons.” Once again Goldilocks renders her judgment: The Court provides “too few” members, even as the general electorate would undoubtedly have been far too many.

Federalist 66: The Past Is a Different Country

In Federalist 66, Publius continues his discussion of the propriety of the Senate’s sitting as the court of impeachment. The primary importance of this essay today is to underscore that the issues of greatest interest to those uncertain about the new Constitution in 1788 were often very different from anything we think about today. Just as reading Reading Lolita in Tehran, especially after the Islamic Revolution of 1979, might be a different experience from reading it in contemporary New York or Los Angeles, so might we conclude that reading The Federalist in the twenty-first century will inevitably provoke different responses than if one had been part of its original audience in 1788.

We have already seen the near-paranoid concern that Congress would take advantage of the Elections Clause to favor urban interests by restricting voting sites to major cities. Sometimes people in 1788 spoke differently, even if the words were the same; the valence attached to the word “democracy,” for example, has certainly shifted dramatically over time, from a term of near opprobrium among many of Publius’s generation to an almost unanalyzed good today. But just as important is the shift with regard even to relatively unambiguous language from a high level of concern to one of indifference. It is difficult for most twenty-first-century readers to understand the depth of concern—what Publius describes as the “vehemence”—about the Senate’s role in impeachment, even if one agrees, as Publius apparently does, that it is not one of the Constitution’s more felicitous aspects. One criticism involved the violation of a “pure” theory of separation of powers, which would deny any legislative institution the ability to play a judicial role. Given Publius’s earlier disdain for such purity, it is not surprising that he defends the “partial intermixture” of legislative and judicial roles. Moreover, he points out—not for the first time—that the constitutions of six states, including New York, Massachusetts, and Pennsylvania, assign decisive powers to one or another branch of the legislature when considering impeachment.

Perhaps the problem is the Senate itself. Some viewed the Senate’s exclusive power over ratification of treaties, the confirmation of federal appointments, and now the resolution of impeachments as “an undue accumulation of powers” and an invitation to aristocracy. Publius not only does not share such fears; he also takes care to note some of the exclusive powers assigned to the House of Representatives. One of them, of course, is initiating impeachment in the first place; the Senate merely reacts to the House’s actions. Another, which has turned out to have little practical importance, is that revenue bills must begin in the House. This could conceivably have been an important feature of our government insofar as it gives the House the ability to prevent any and all tax increases simply by refusing to initiate them. But, as a matter of fact, the Senate has long been accorded the right to amend existing legislative proposals by including provisions requiring tax increases. The House’s third exclusive power has on two occasions, 1801 and 1825, proved extraordinarily important: the ability to choose a president when the Electoral College cannot name a clear winner. That power might have reemerged in 1948, 1968, and 2000, when a shift of relatively few votes in key states would have resulted in no candidate’s gaining a majority of the electoral votes or, in 2000, a tie between George W. Bush and Al Gore.

Publius makes a sagacious observation with regard to the charge that the Senate will be reluctant to convict federal officials whose initial appointments it, after all, confirmed. He notes that the confirmation power is itself a reactive power. The Senate “may defeat one choice of the executive, and oblige him to make another; but they cannot themselves CHOOSE—they can only ratify or reject the choice, he may have made.” Even in the twenty-first century, this remains a key point. Confirmation battles have now become a feature of our polarized political process, and Senate opponents of the president sometimes win. But presidents rarely lose the overall appointment wars inasmuch as they can continue sending nominees, all of whom will presumably be committed to the president’s agenda.

That being said, it may be increasingly relevant that the ability of a partisan Senate to deny confirmation to any nominee can disrupt the ordinary operations of administrative agencies. Former Clinton speechwriter Jeff Shesol has caustically described the strategy of the congressional wing of the Republican Party as vindicating “the liberty of the American people to have a non-functioning government.” One would, of course, like to dismiss this as mere partisan hyperbole, but that could be a mistake. At least some Republican senators, angry over President Obama’s declaration of a new policy regarding the treatment of unauthorized aliens who have lived for a substantial time within the United States (and who have children who are indeed “natural born Citizens” of the United States), proclaimed that they would simply refuse to confirm any of Obama’s appointees at least when vital interests of national security are not at stake. The 2015–2017 Senate, firmly controlled by the Republican Party, will offer a natural test of the extent to which a president will be stymied in making practically any appointments that require Senate confirmation.

One “further consideration” reinforces the preference for the Senate over the Court. Impeachment is a special kind of trial in which conviction brings a unique form of punishment: the removal of the miscreant from office and, in certain circumstances, a ban on his holding any public office in the future. But this may not be the end of the matter. An impeached official can also be subjected to criminal trial and punishment, which is the function of the judiciary. “Would it be proper,” Publius asks, “that the persons who had disposed of his fame, and his most valuable rights as a citizen in one trial, should, in another trial, for the same offense, be also the disposers of his life and his fortune?” There is surely something to be said for this concern, but then one wonders why the Constitution assigned the chief justice to preside over impeachment trials of the president. Some readers may recall that William Rehnquist wore special robes of his own design when crossing the street to take his seat as the presiding officer in the trial of President Clinton. Would he have recused himself in any subsequent case involving potential criminal liability of the impeached Clinton?

Publius goes on to consider the creation of what might be termed a “special court of impeachment,” whose members’ only duty is to try those charged by the House with impeachable offenses. He presents reasons both pro and con. What is ultimately most telling is the tepidness of the entire discussion and his reminder, once more, that we should not seek perfection in that human creation called a constitution. He readily concedes that “preferable” alternatives to the system set out in the Constitution might well have been “devised,” but so what? “[I]t will not follow that the Constitution ought for this reason to be rejected. If mankind,” Publius mordantly observes, “were to resolve to agree in no institution of government, until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy, and the world a desert.” The search for a possibly utopian best—and, he asks, “Where is the standard of perfection to be found?”—would truly become the enemy of an attainably adequate constitution. Thus, he states that “adversaries of the Constitution . . . ought to prove, not merely that particular provisions in it are not the best which might have been imagined,” a proposition to which Publius readily assents, but instead “that the plan upon the whole is bad and pernicious.”

It is one thing to predicate one’s support or opposition to the Constitution on the compromises surrounding slavery or on the demands of small states for equal representation in the Senate. Perhaps they should have been deal breakers. But surely only a fanatic would be so concerned about the impeachment process as to reject the Constitution on that basis. We can read in this essay an “anti-fanaticism” principle, a maxim that we should draw lines in the sand only about truly fundamental issues. What might otherwise appear to be an esoteric discussion thus contains a strong and important lesson for twenty-first-century readers.

From An Argument Open to All: Reading “The Federalist” in the 21st Century by Sanford Levinson; published by Yale University Press in 2017. Reproduced by permission.