What is the Senate’s proper role during confirmation hearings for Cabinet-level positions? For those who believe maintaining America’s institutions and first principles is essential to the survival of our republic, the question takes on a bit of a different angle: how did the Framers of the U.S. Constitution envision the confirmation process? Article II, Section 2, Clause 2 of the U.S. Constitution outlines the Senate’s confirmation power as follows:
“[The president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he 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 Appointment are not herein otherwise provided for, and which shall be established by Law . . .” (emphasis added).
This provision, colloquially referred to as the Appointments Clause, mandates that any primary official in the United States government, such as a Supreme Court justice or Cabinet secretary, must be approved via the “Advice and Consent of the Senate.” This begs the obvious question: what in the world did those old, dead white guys mean by “Advice and Consent of the Senate.”
Fortunately, Alexander Hamilton offers, in Federalist No. 76, a reasonably straightforward standard by which the Senate should evaluate a nominee’s merit:
“[The president] would be both ashamed and afraid to bring forward, for the most important stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.”
In layman’s terms, the president should only nominate someone to a Cabinet-level position if said individual has some degree of merit independent of their loyalty to the president or president-elect. Though this definition ignores potential personal ethical violations by the president’s nominees, Hamilton’s other writings throughout The Federalist Papers demonstrate a different outlook. For example, in the very same essay, Federalist No. 76, Hamilton argues that the strength of the Senate’s “co-operation” in the appointment process lies in its power to “prevent the appointment of unfit characters . . . .” Here, it becomes clear that Hamilton not only considered an ethical evaluation of the president’s nominees but expressly advocated for such a process during the Senate’s confirmation hearings.
For those who believe that I am selectively using Alexander Hamilton’s words to support my argument, let me draw attention to the perspectives of two other towering figures among the Framers: George Washington and James Madison. In his renowned Farewell Address, Washington observed that “it is substantially true that virtue or morality is a necessary spring of popular government.” Similarly, Madison asserted in Federalist No. 57 that “the aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good.” These remarks demonstrate that the Framers, or at least three of the most vocal advocates for the U.S. Constitution, unequivocally believed that America’s leaders should embody a form of virtue that inspires trust and sets a moral standard for the nation.
Historians and constitutional scholars have long debated what this moral standard meant to America’s founders. Some argue that the Framers endorsed a classical conception of virtue grounded in Stoic ideals like temperance, wisdom, and selflessness—qualities that prioritize the common good over personal gain. Others contend that virtue was a broader construct tied to religious or civic notions of ethical behavior. For the purposes of this argument, however, the precise definition of virtue is not critical. What matters is that the Framers agreed that someone could be disqualified from office on strictly ethical grounds.
While the precise definition of virtue may remain open to interpretation, the Framers provided concrete guidance on how ethical considerations should inform the appointment process. As outlined above, the Framers articulated a robust framework for determining the type of behavior that senators should rebut when exercising their “advice and consent” authority under Article II, Section 2 of the Constitution. Hamilton, in Federalist No. 76, identified key forms of misconduct that the Senate should reject in nominees, including “state prejudice,” “family connection,” “personal attachment,” personal alliance to the president, and “a view to popularity.” These examples represent unethical actions tied directly to the political duties of nominees—favoritism, undue influence, and allegiance to the president over the nation’s interests—rather than private moral failings. As we have seen with the scandals of Thomas Jefferson and Bill Clinton, two of America’s most accomplished politicians, personal moral failings do not always indicate one’s fitness for office. From this, it can reasonably be concluded that the Senate’s responsibility to vet nominees is primarily rooted in addressing unethical conduct of a political nature.
Despite the Framers emphasizing the importance of virtue in public officials and encouraging the appointment of leaders who could inspire the public with their character, this was more of an aspirational standard than a strict constitutional mandate. For example, Madison’s assertion in Federalist No. 57 that the Constitution aims to secure leaders who possess “the most wisdom to discern, and most virtue to pursue, the common good” reflects a general recommendation rather than a binding requirement. This distinction is critical: while the encouragement to select virtuous leaders supports the moral fabric of the republic, the Framers clearly imposed a more substantial, enforceable duty on the Senate to reject nominees who exhibit specific forms of political misconduct, such as favoritism, undue loyalty, or corruption. In line with Federalist No. 76, the Senate’s primary obligation is to prevent the confirmation of individuals whose political conduct compromises their ability to serve the public interest.
However, the constitutional oath taken by senators introduces an additional layer of responsibility in protecting the republic’s foundational principles. In Article VI, Clause 3, senators are sworn to “support and defend the Constitution against all enemies, foreign and domestic,” which extends beyond mere procedural oversight. This constitutional oath imposes a fundamental responsibility to prevent the appointment of individuals whose ideological commitments or past actions would actively undermine the Constitution’s core classical liberal principles of individual liberty, equal protection, and democratic accountability. The oath is not a passive commitment but an active charge to protect the institutional integrity of the federal government from those who would seek to subvert its foundational values. Thus, the Senate’s duty to reject nominees transcends narrow political considerations, becoming a critical mechanism for preserving the constitutional order itself.
This ultimately leaves only a narrow segment of personal ethical misconduct that would neither interfere with the public trust nor the constitutional order. President Franklin D. Roosevelt’s personal extramarital relationship with Lucy Mercer provides a compelling historical illustration of this principle. Despite maintaining a long-term intimate relationship with Mercer, which would have been considered a significant moral failing in early 20th-century America, Roosevelt continued to lead the nation through two of its most challenging periods—the Great Depression and World War II. His personal indiscretion did not compromise his ability to govern effectively, pursue progressive policies that expanded economic opportunity, or make critical strategic decisions that preserved democratic institutions both domestically and internationally.
Roosevelt’s leadership demonstrates that personal moral lapses do not automatically disqualify an individual from effective public service, particularly when those failings do not directly impact official conduct or undermine the fundamental principles of the U.S. Constitution. His relationship with Mercer, while ethically complicated by the standards of his time, did not reflect the kind of political misconduct the Framers sought to prevent—such as favoritism, corruption, or threatening constitutional guarantees. This example aligns with the Framers’ nuanced view of virtue, suggesting that a leader’s capacity for public service should be evaluated primarily on their political conduct, constitutional fidelity, and ability to pursue the common good rather than strictly personal moral standards.
Thus, the Framers’ writings suggest that a tacit obligation to reject any nominee who has committed unethical acts of a political nature exists within the Senate’s discretionary authority. By doing so, the Senate fulfills its constitutional duty to ensure that only individuals who meet the standards of public virtue—as described by Washington, Madison, and Hamilton—assume positions of power. This interpretation aligns with the broader principles of accountability and integrity that underpin the Constitution, ensuring that public office remains a trust exercised for the benefit of the people rather than a vehicle for personal or partisan gain.
All of that leaves us with the following standard:
A nominee should only be disqualified from confirmation by the Senate if their past conduct or ideological commitments demonstrate:
- Ethical violations of a political nature (loyalty to the president over national interests, state favoritism, etc.)
- Fundamental contradictions to constitutional principles (i.e., support for ideologies that reject the Constitution’s classical liberal approach)
- Personal moral failings that directly impact public duties (sexual harassment, alcoholism, drug addiction, etc.)
By: Sherman Criner
