ISSN 1062-7421
Vol. 11 No. 11 (November 2001) pp. 553-555.


THE FEDERAL APPOINTMENTS PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS by Michael J. Gerhardt. Durham, N.C.: Duke University Press, 2000. 400 pp. Cloth $37.95. ISBN: 0-8223-2528-4.

Reviewed by John Anthony Maltese, Department of Political Science, University of Georgia.

For those seeking a one-volume overview of the federal appointments process and the existing literature on it, Gerhardt's volume is a valuable synthesis. The book itself is divided into three parts. Part I, which consists of three chapters, traces the origins, structure, and evolution of the federal appointments process. Chapter 1 focuses on the constitutional language involving the appointment process and the founders' deliberations over it. Chapter 2, a very brief six-page chapter, focuses on the structure of the appointments process: the fact that a single appointments clause governs a wide array of different types of appointments and thus does not explicitly provide for different standards, procedures, or accommodations for specific types of appointments; the presumption of confirmation that is inherent in the process; and the division of power between the president (who nominates) and the Senate (who confirms) which, Gerhardt argues, serves ultimately as an impetus for consensus nominees. Chapter 3 surveys historical changes that over time have affected the appointments process. Gerhardt emphasizes that the context in which appointments arise is crucial to explaining the process. This may involve the specific historical context of a specific appointment (he illustrates with examples of Abraham Lincoln's Supreme Court appointments), or broader historical developments that affect a wide range of appointments. Among the latter are: (1) the development and evolution of political parties; (2) the expansion of the national government; (3) changes within the Senate; (4) the rise of interest groups; and (5) the
expansion of media coverage.

Part II, which consists of five chapters, examines the roles of the various players in the appointments process. Chapter 4 focuses on the president. Gerhardt warns against the tendency of legal scholars to personalize the process, and stresses instead the importance of institutional constraints on presidential behavior. These constraints include such things as presidential popularity, the presence of divided government, the quality of presidential organization and staffing, and the timing of the
appointments. The last part of the chapter briefly reviews the selection criteria used by presidents to choose nominees. Chapter 5 focuses on the Senate and its constitutional duty to offer advice and consent on nominations. Gerhardt suggests that the Senate should be assessed in different institutional terms than those used to evaluate the presidency. He notes that, while the presidency is unified in a single person, the Senate "operates primarily but not exclusively through a combination of individual, small group, and other collective action," and suggests that public choice theory is a useful tool for clarifying the Senate's operations (p. 136).
One must, of course, be careful-as Gerhardt himself noted in the previous chapter-not to personalize the role of the president in the

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appointments process. With the rise of the institutional presidency, in particular, there are often many competing interests within an administration that vie for influence in the appointments process. Thus, modern presidents-like senators-must contend with some elements of collective action that Gerhardt seems to suggest are unique to the Senate. Gerhardt also focuses in the chapter on specific senatorial norms and procedures, such as senatorial courtesy. Chapter 6 focuses on the role of nominees themselves. Gerhardt identifies the two conflicting roles that nominees have typically been forced to choose between: (1) passive object, around which others have fought and rallied, or (2) active participant in the process. He examines the nature, implications, and limitations of each of those roles. Chapter 7 focuses on interest groups and other public participation in the appointments process. Little attention is given to the emergence of interest group involvement in
the nineteenth century, and no mention is made of the work Gregory Caldeira and Jack Wright or of Caldeira, Marie Hojnacki, and Wright. There is a brief discussion of the role of the American Bar Association. Chapter 8 focuses on the impact of the media and technology on the appointments process.

Part III of the book focuses on proposals for reforming the federal appointments process and consists of two chapters. Chapter 9 assesses the need for reform generally. Among other things, Gerhardt discusses Stephen Carter's suggestion that Congress legislate minimum qualifications for certain types of posts, the possibility of reducing conflict in the appointments process, and the possibility of enhancing public participation in the process through the internet. Chapter 10 focuses specifically on reforming judicial selection.

This is a sophisticated summation of a vast topic. Gerhardt's examples are well chosen, his writing is engaging, and his coverage is comprehensive. It is a welcome exception to the many books that focus on a single appointment or narrow time frame. I am especially sympathetic to Gerhardt's "historical institutionalist" approach, which has been a theme of my own work on the Supreme Court appointment process. For Gerhardt, institutional structures and norms matter. They form the confines within which the actors in the process operate. A key to understanding the process and how it has changed is to focus on these institutional arrangements and changes associated with them. Gerhardt uses this approach clearly and effectively.

Minor errors occasionally distract the reader (for example, both G. Harrold Carswell and Clement Haynsworth are misspelled throughout as "Harold" Carswell and Clement "Haynesworth," and there are a number of relatively inconsequential misstatements of fact). If there is a broader weakness, though, it is a reflection of the book's strength: it is largely a summation of existing secondary literature. There is, of course, an important place for such summaries -- and this is a very good one, indeed. It is also a summary that is well grounded in theory. Gerhardt makes a strong case for his historical institutionalist approach, and I believe that is a significant
contribution. But given Gerhardt's talent for narrative and his ability to incorporate a wide range of material in a coherent whole, it is a shame that he did not couple his survey of the topic with more systematic original research that could have turned this into a truly pathbreaking book. He did base his research, in part, on "an informal survey" of "fifty-nine officials with firsthand experience with the federal appointments process" (p. 12), but the extent

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to which this survey expands our understanding of the process strikes me as relatively small, and there is no other systematic primary research that I could detect. Especially to the extent that this book looks beyond judicial appointments, more original research would have been a welcome addition. Much of what has been written on federal appointments has been in the context of judicial appointments. Although Gerhardt helps to rectify this, his book nonetheless ends up emphasizing judicial appointments--a reflection, no doubt, of the secondary literature he primarily relied on.

Still, THE FEDERAL APPOINTMENTS PROCESS is an erudite overview of the topic. Thoughtful, well-written, and comprehensive, the book is a good
starting point for understanding the federal appointments process as a whole.

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Copyright 2001 by the author, John Anthony Maltese.