Advice and consent: A study of the pre-nomination process.

摘要

This dissertation focuses on the interplay between the executive and legislative branches during what I term the "pre-nomination process," or the stage in the appointment process before the President formally submits a nominee. Although the Constitution gives the President the right to make nominations, it fails to detail how "advice and consent" should operate. Both branches are free to interpret this clause in any way they see fit. At times, this has created inter-branch conflict and confusion. At other times a constructive relationship. This study attempts to address this problem by determining the proper relationship between the President and Congress during the pre-nomination process.; Although there has been a two hundred plus year history of making federal appointments, there is relatively little in-depth history and analysis written about the pre-nomination process. Many studies have explained how the advice and consent clause has been implemented at the Senate level. However, this scholarship gives little attention to the pre-nomination process and generally covers only the public record: newspaper coverage of interest group activity, floor speeches of Senators, presidential statements, and congressional hearings. This dissertation provides an insight into the private record that precedes a nomination, including informal contacts and letters from lawmakers to Presidents.; Overall, I reason that through a historical examination of the pre-nomination process and by looking at the two branches in a broader, more practical perspective, one can understand that political realities negate fixed, doctrinaire positions. Typically, the President and members of Congress will work together to make mutually agreeable selections. That is why, despite the potential for conflict, major battles over nominations are rare. Instead of each branch taking a zero-sum view of the advice and consent clause, they generally choose to cooperate. The resulting norm for the pre-nomination process has been that the two branches developed mutually beneficial arrangements to allow for consultation when considering nominations. Such a course best embodies the checks and balance system, results in a shared power arrangement, and is consistent with the principles of republican government.