In making appointments the President has a good deal of power to appoint who he wants, even though his appointments must be confirmed by the Senate. The President has appointment market power because as the sole supplier of appointment nominations, the president faces almost no competition or potential competition. The presidential term is long, and there is only one of him. This is especially true in the President’s second term because he cannot be re-elected and so has little incentive to please voters. In contrast, Senators face competition in supplying votes for confirmation, and face at least some electoral competition.

Because American parties are strong, there is some degree of market power in the Senate, but it is not unbreakable because the party structures can only exert limited pressure on Senators. Senators can and do defy their party. Additionally, I suspect that the Senate actively blocking appointments is much more visible to the public than the president submitting extreme nominations, which makes it easier for the Senate to lose politically. These factors add up to a strong presidential advantage in the appointment process.

Consider President Bush’s recent nomination for Attorney General Michael Mukasey. Some people might say that the Democratic majority got all it argued for (it got a nomination it suggested), but consider how modest the aims of the Democrats were; Democrats didn’t suggest lefty candidates or even centrist candidates to be “consensus nominations”; they suggested a candidate who shares much of the Administration’s ideology. Opposition Senators can win nomination concessions at the margin, but they have an infra-marginal disadvantage.

While many regard the president’s appointment market power as appropriate, I do not. Strong rule of law requires that laws be enforced as evenhandedly and as free of agenda as possible. The task of the executive branch is to carry out the law, not to make policy. The president’s latitude in appointing who he wants, gives him the power to shape policy by appointing people with shared policy objectives to executive agencies, influencing policy not by changing the law, but by changing the enforcement of the law. The power of the president to appoint judges who are particularly sympathetic to the executive branch acts to amplify the power of the president to shape policy (Charlie Savage discusses that here). If we want moderate administrators of the law who have respect for the law the president’s market power in the appointment power must be less than it is now.

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