Senatorial Courtesy ( 1942 )

Senatorial Courtesy
The custom known as “senatorial courtesy,” whereby certain nominations to federal office have been
objected to by an individual senator on the ground that the person nominated is not acceptable to
him, appears recently to have been limited to local offices of the federal government.
May 29, 1942
MEMORANDUM OPINION FOR A UNITED STATES SENATOR*
The custom known as “senatorial courtesy” is not a formal rule of the Senate,
and is not included in the published rules of that body. The term is used to refer to
a practice of long standing whereby certain nominations to federal office have
been objected to by an individual senator on the ground that the person nominated
is not acceptable to him. The question of whether this practice is in any sense
justifiable or desirable is one which the Senate itself must decide. In this memo-
randum I am merely calling attention to relevant authorities and precedents,
without attempting to state my own personal views on the desirability of the
practice or, of course, attempting to advise the Senate.
If it be conceded that the practice may in certain instances be justifiable and
even desirable, in sound reason it would seem that the exercise of the practice
should be limited to cases in which a senator makes objection to an individual who
is a resident of the senator’s own state, and has been nominated for local federal
office in that state. The argument is advanced, perhaps not without some merit,
that the senator is in a position to report to his colleagues the views of his constitu-
ents as to the qualifications of the individual in question—an individual whose
duties will bring him in intimate contact with the daily lives of those constituents.
This argument would not seem to be applicable to positions of national im-
portance, the duties of which are not limited to any one state. As to such a
position, an individual senator would seem to be acting in his capacity as a
member of the council of elder statesmen of the nation, rather than as a representa-
tive primarily of his own constituents.
Expressions by distinguished members of the Senate in recent years have tend-
ed to be in accord with the view that senatorial courtesy should apply only to local
offices, the duties of which are limited to the state of the objecting senator. For
example, on March 23, 1932, Senator Watson said:
Mr. WATSON. . . . [W]hen I came here I adopted the policy of
voting against the confirmation of any man appointed to a Federal
*
Editor’s Note: This memorandum was conveyed under cover of a letter from Assistant Solicitor
General Cox to Senator George L. Radcliffe of Maryland, stating as follows: “The Attorney General
has asked me to prepare and send to you a memorandum on the custom known as ‘Senatorial
Courtesy.’ I am herewith transmitting a copy of such a memorandum.”
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Senatorial Courtesy
position if and when a Senator from the State in which he lived rose
in his place on the floor of the Senate and stated that the appointment
was personally obnoxious and personally offensive to him. Original-
ly that rule was followed without regard to the field of activity of the
appointee; that is to say, if a man were appointed to office anywhere
and a Senator rose to say the appointment was personally offensive,
it was regarded as sufficient to cause rejection. But about 10 years
ago there was a modification of the rule here, and I was one of those
who led the fight to bring about the modification.
....
Mr. NORRIS. The Senator does not mean to say there is a rule on
that subject in the Senate?
Mr. WATSON. No; I do not mean to say there is a rule; but there
is a practice; if the Senator please, an unwritten rule. . . .
It is a practice or custom that has been followed; so that where a
man is appointed to serve wholly within the State represented by the
Senator who makes the objection, in such a case his objection on
such grounds is sufficient reason for rejection.
75 Cong. Rec. 6729.
On March 23, 1934, the following colloquy between Senator Overton and
Senator Barkley occurred:
Mr. OVERTON. . . . Mr. President, let me make the additional
statement that I understood that whenever a Senator from a State
made an objection to the appointment of someone who was to dis-
charge the duties of an office that was wholly intrastate, and based
that objection upon the ground that the person named was personally
obnoxious to him, the Senate respected that objection. . . .
Mr. BARKLEY. . . . I realize that from time immemorial, where a
Senator objects to a nomination or appointment of a citizen of his
State to a local office, and states that the appointment is personally
objectionable and obnoxious to him, the Senate heretofore, almost as
a universal rule—which does not have the force of law, but is the
result of courtesy—has respected that objection, and has refused to
confirm the nominee. In recent years, I think it ought to be said,
there has been some modification of that unwritten rule to the extent
of asking or expecting the Senator who makes the objection on per-
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sonal grounds to present some reason for the objection. Otherwise its
arbitrary exercise would make it impossible for an Executive to ap-
point anybody in the State who could be confirmed.
78 Cong. Rec. 5251.
Similarly, on June 29, 1939, Senator Wheeler said:
In the 16 years I have been a Member of the Senate I have not
known the Postmaster General of the United States to name appoin-
tees in a particular State over the objection of either one of the Sena-
tors. Perhaps it has been done; but, if so, it has never been called to
my attention during my service in the Senate. . . .
It has always been recognized that a different rule applies to
appointments outside the State from that applying to appointments
within the State.
84 Cong. Rec. 8225, 8226.
Leading text writers, apparently without exception, have indicated that senato-
rial courtesy should be confined to local offices. To quote:
“[T]hrough the development of what is known as the ‘courtesy of the
Senate,’ the Senators from each state when they belong to the same
political party as the President generally control the nominations to
local offices of the national government within their own state.” John
A. Fairlie, The National Administration of the United States of Amer-
ica 45–46 (1905).
“The Constitution provides that appointments to federal office shall
be made by the President with the advice and consent of the Senate.
But in consequence of the custom known as ‘senatorial courtesy,’
when the President makes an appointment to a local federal office he
is virtually obliged to obtain the consent of the senators from the par-
ticular state in which the office is located, if they belong to his party.
Otherwise the Senate will not approve the appointment.” James Wil-
ford Garner & Louise Irving Capen, Our Government: Its Nature,
Structure, and Functions 263 (1938).
“In late years, however, there has come into existence the custom
known as ‘senatorial courtesy,’ according to which the President
must obtain in advance the approval of the senators from the particu-
lar state in which an office to be filled is located, provided they
belong to his political party. If he refuses to do so and nominates a
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person who is objectionable to the senators from that state, the other
senators as a matter of ‘courtesy’ to their offended colleagues will
come to their rescue and refuse to approve the appointment. It has
come to pass, therefore, that individual senators in many cases are
virtually the choosers of federal officers in their states.” Id. at 333.
“A class of important federal offices scattered among the states,
though nominally filled by the President with the advice and consent
of the Senate, is subject largely to the control of the latter, as a result
of a time-honored practice known as ‘senatorial courtesy.’ Under its
power to advise and consent, the Senate does not officially suggest
names to the President, but it will ratify nominations to many offices
only under certain conditions. If either one or both of the Senators
from the state in which the offices under consideration are located
belong to the President’s political party, then executive freedom of
choice almost disappears.” Charles A. Beard, American Government
and Politics 151 (8th ed. 1939).
Haynes, in his Senate of the United States, has perhaps the most complete
discussion of the subject. He cites a few instances in which attempts were made to
apply the practice of senatorial courtesy to nominations to national offices, though
it is clear that he does not approve of such application. He refers to the Rublee
incident in 1916, and states that Senator La Follette, in challenging Senator Gallin-
ger’s request for application of the practice, declared that “this was the first time
since he had been in the Senate that the ‘personally obnoxious’ rule had been
applied to a national appointment.” 2 George H. Haynes, The Senate of the United
States: Its History and Practice 741 n.2 (1938).
As the Rublee incident shows, individual senators have not at all times agreed
upon the extent to which the practice should be applied. Senatorial courtesy is,
after all, simply based on custom, the boundaries of which may change from time
to time, and which can never be said to be subject to exact definition. If a senator
wishes to do so, he may object to any nomination on whatever ground he sees fit.
His colleagues in the Senate will then judge whether these objections should be
given weight. The purpose of this memorandum is to point out that the views
expressed in recent years by some of the leading members of the Senate and by
text writers have tended in the direction of limiting the practice to local offices.
Such examination of the actual precedents in the Senate as has been made in
the limited time at my disposal appears to indicate that senators have from time to
time attempted to invoke the practice of senatorial courtesy in respect of offices of
national importance, and that in a few cases the Senate has in fact failed to confirm
the nominee. In most, if not all, of these instances, however, it would appear that
the Senate’s action was based on considerations independent of the objection so
raised. In no case which has come to my attention—not even the Rublee case—
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does it appear that such a nomination was rejected solely on the ground of
senatorial courtesy.
OSCAR S. COX
Assistant Solicitor General
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