Harper's/The “Senatorial Prerogative”

grievances of Mr., a Senator of the United States from Maryland, which have been widely communicated to the country by the newspapers, deserve much more serious consideration than they have received. The facts appear to be as follows: Senator  recommended the appointment of Mr., Jr., to the consulship at Southampton. It may be remarked by the way that Mr., Jr., is the son of Mr., Sr., a man of money and influence, who is said to have done much for the election of Mr. as Senator. In fact, he alleges that it was he who made Mr. Senator. Be that as it may, President nominated Mr., Jr., not for the consulship at Southampton, but for that at Leipzig. Against this divergence from his wishes Senator protested, but the President disregarded the protest. Thereupon Senator went before the Senate committee which has to consider and report upon nominations for consular offices, and demanded that the nomination of Mr., Jr., for the consular post at Leipzig should be reported upon adversely. He complained, as is said, with considerable warmth, of the treatment he had received at the hands of the President as an invasion of his &ldquo;prerogative&rdquo; as a Senator, and sternly insisted that he had the right to expect the same consideration as that accorded to other Republican Senators.

Some newspapers are disposed to make light of Senator earnestness in defending the &ldquo;Senatorial prerogative,&rdquo; and to treat it jocosely. The case may be open to that sort of treatment, but it has also its very serious side, for it exhibits in a glaring light the abandonment of the true constitutional principles in the making of appointments to office which we have gradually come to. When Mr. speaks of his &ldquo;Senatorial prerogative,&rdquo; he means that a Senator belonging to the administration party shall have the right to designate the persons who are to be appointed to the principal offices in, or allotted to, his State. This &ldquo;prerogative&rdquo; has, to a greater or less extent, been recognized by several administrations. President appears to have adopted the rule that the Senator may designate the persons to be nominated for such offices, or that, if the Senator designates persons that are very objectionable, then at least no nominations shall be made without the assent or acquiescence of the Senator of the State concerned. If this is the rule which has been followed with regard to other Republican Senators, then Mr. would seem to have a right to complain of discrimination against himself. It may, indeed, be said that Mr. had endorsed young Mr. for Southampton and thereby had testified to his fitness and acceptability for any such place. But if, as a general rule, the &ldquo;prerogative&rdquo; of a Senator to prevent a nomination by objecting to it is recognized, then Mr. may expect to defeat the nomination of Mr., Jr., by objecting to it, on the ground that he has found reason for changing his mind, or that the man suits him for Southampton but not for Leipzig, or that there are other considerations moving the Senatorial bosom too deep for the Executive mind to fathom. If the President divests himself of the freedom of making nominations according to his own judgment in favor of the other Republican Senators, it is hard to see why Mr. should not claim his right to equal treatment. That a consistent adherence to such a method of making nominations may lead an administration into pitiable dilemmas is certainly true. But that is a thing which should have been considered before the method was adopted.

Is it not time that the President and Senators and the American people generally should once more remember what under the Constitution the power and the duties of the President and of the members of the Senate really are? The Constitution provides that the President &ldquo;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 otherwise provided for in the Constitution.&rdquo; How this provision should be understood and carried out is clearly set forth in the Federalist. According to that authority, &ldquo;in the act of nomination his (the President's) judgment alone would be exercised; and as it would be his sole duty to point out the man who with the approbation of the Senate should fill an office, his responsibility would be as complete as if he were to make the final appointments.... But his nomination may be overruled. This it certainly may; yet it can only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not probable that his nomination would often be overruled. The Senate could not be tempted by the preference they might feel for another to reject the one proposed, because they could not assure themselves that the person they might wish would be brought forward by a second or by any subsequent nomination .&rdquo;

Nothing could be clearer than this exposition of the President's power and duty in making nominations. The Constitution demands that the President shall select the persons to be nominated according to his own judgment and upon his own responsibility; and that responsibility is as great as if the nomination were equivalent to a completed appointment. Nor can he share this responsibility in making nominations with the Senators; for their responsibility as members of the Senate begins only when the nominations are submitted, not to Senators individually, but to the Senate as a body, for approval. The Constitution even expressly discountenances the exercise of any Senatorial influence upon the making of nominations by the President, for, according to the Federalist, the President shall act so independently in nominating persons for office that Senators shall not be tempted to reject nominations for the purpose of compelling the President to nominate certain persons whom they would prefer. It is evident, therefore, that the practice which gives the Senators any part in the selection of persons for nomination is grossly repugnant to the spirit and intent of the Constitution. When the President permits Senators to control in any sense, positively or negatively, nominations before they are submitted to the whole Senate he violates his constitutional duty and evades his constitutional responsibility. When Senators claim, as a &ldquo;Senatorial prerogative,&rdquo; the right to interfere with the nominations to be submitted by the President to the Senate according to his judgment and upon his responsibility, they seek to usurp the President's constitutional power and discretion. The so-called &ldquo;Senatorial prerogative&rdquo; is therefore a conception utterly hostile to the true meaning of the Constitution.

It may be said that the President, in selecting persons for nomination, may prefer the recommendations made by Senators to those made by others. But who will deny that compliance on his part with such recommendations as a systematic practice will be merely a systematic practice of surrendering his constitutional power and of stealing away from his constitutional responsibility? It is also said that the President has to recognize the &ldquo;Senatorial prerogative&rdquo; for the sake of &ldquo;harmony.&rdquo; What does this mean? That the President has to violate the spirit and intent of the Constitution, in giving the Senators a wrongful control over the nominations, for the purpose of obtaining their &ldquo;support&rdquo; &mdash; that is, their votes for the measures he wishes to carry. And what does this mean? That he has to influence the official action of Senators by bribing them with patronage. This is nothing more nor less than corruption, by whatever euphonious name we may call it. And what is the effect of this corrupt system? To diminish the number of high-minded statesmen, and to increase that of venal spoilsmongers in Congress; to encourage these spoilsmongers there to demand pay in the shape of patronage bribe for every important sustaining vote they give; to foster the pernicious notion that the public offices exist not for the service of the people, but for the benefit of the politicians; to accustom the public mind to the contempt of the fundamental law, and to the toleration of essentially corrupt practices, and thus to contribute powerfully to that demoralization in our political life which tends to undermine our democratic institutions. This is the true nature of the &ldquo;Senatorial prerogative.&rdquo;



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